IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

AMERICANS UNITED FOR SEPARATION )

OF CHURCH AND STATE;

)

C~uROL DELP;

)

ARDENE McKEAG; and

)

DOROTHY REDD;

)

)

Plaintiffs,

)

)

)

)

PRISON FELLOWSHIP MINISTRIES;

INNERCHANGE FREEDOM INITIATIVE;

TERRY MAPES, in his official capacity as

Warden of the Newton Correctional Facility

and in his individual capacity;

WALTER "KIP" KAUTZKY;

JOHN BALDWIN, in his official capacity as

Acting Director of the Iowa Department of

Corrections and in his individual capacity;

JOHN DOE, in his official capacity as

DIRECTOR OF THE IOWA DEPARTMENT

OF CORRECTIONS and in his individual

capacity; and

HAYWOOD BELI_J~, FRANCES COLSTON,

ROBYN MILLS, ARTHUR NEU,

SUELLEN OVERTON, WALTER REED, JR.,

and DONALD TIETZ, in their official capacities

as members of the iowa Board of Corrections

and in their individual capacities;

Defendants.
)

00 4

COMPLAINT

I. Introduction 1. Defendant Prison Fellowship Ministries ("Prison FeIlowship") operates a pervasively
religious pre-release program called the InnerChange Freedom Initiative ("InnerChange," or "the Inr~erChange program," or "WI") in the Newton Correctional Facility ("Newton") in the State of Iowa ("the State"). Inmates who participate in the InnerChange program are housed in a separate unit of Newton, where InnerChange immerses them in "24-hour per day Christ-centered Biblebased program[ming]." During nearly all their waking hours, participating inmates are subjected to intensive, evangelical, Biblically-based instruction from a Christian fundamentalist standpoint. In rooms whose walIs are lined with scripture, the inmates study the Bible, memorize Bible verses, and pray. In Prison Fellowship’s own words, the "major purpose of the program" is "transformation" to be "brought about by depending on Christ."
2. A substantial portion of the InnerChange program’s budget is paid for by State funds taken from profits the State makes off telephone calls that are placed by inmates and that are often paid for by family members, friends, and attorneys of inmates. In addition, State funds received through the settlement of tobacco litigation have been allocated to support the InnerChange program. State moneys that were obtained from persons who do not subscribe to the religious teachings of the InnerChange program and from a fund that was created to generally benefit the public health have thus been used and allocated to pay for pervasively religious, evangelical, fundamentalist Christian instruction.
3. In order to tal~e part in the InnerChange program, inmates must agree to be subjected to intensive instruction in I_nnerChange’s fundamentalist Christian teachings. Recruitment materials provided to prospective participants make clear that there is a place in the InnerChange

program only for those who subscribe to or are willing to actively cooperate in being converted to a fundamentalist, evangelical form of Christianity. Prospective participants are told that "It]he program confronts prisoners with the choice of embracing new life in Christ and personal transformation, or remaining in the stranglehold of crime and despair," that "[t]rue transformation begins with salvation, also called conversion," and that "[c]onversion is when you turn away from what is negative and turn to Christ." In order to successfully proceed through the program, inmates must receive passing marks on evaluations in which they are rated on explicitly religious criteria, such as "[a] s faith proceeds joy, demonstrates a belief in Jesus Christ," "[p]rays in the Spirit," and "[p]uts God first in his life, ’serves no idol’ and is quick to praise God." The State’s sponsorship and financing of the InnerChange program thus discriminates against inmates who do not subscribe to the particular form of Christianity taught by InnerChange.
4. Inmates who participate in the InnerChange program receive numerous privileges denied to non-participating inmates. InnerChange participants live in an "honor unit" where they are given keys to their own cells and access to private bathrooms, while non-participating inmates live in a "lock-up unit" where correctional officers have sole control over locks to cell doors and where the toilet stools are located in the middle of cells. InnerChange participants receive a broad range of other benefits denied to non-participating inmates, such as additional visits with family members, free telephone calls to family members, access to computers and wc,rd-processing equipment, and access to big-screen televisions. The operation of the InnerChange program therefore gives inmates incentives to subject themselves to religious indoctrination.
5. Prison Fellowship and InnerChange have a publicly announced policy of employing

only Christians as staff members and allowing only Christians to serve as volunteers. All innerChange employees and volunteers must subscribe to a fundamentalist Statement of Faith affirming, among other things, that they "believe that all people are lost sinners and cannot see the Kingdom of God except through the new birth" and "that the Bible... is without error in all its teachings, including creation, history, its own origins, and salvation." State funds are used to pay portions of the salaries of InnerChange employees. The State is thereby financing religious discrin~nation in employment.
6. For these and other reasons, the State’s sponsorship and financing of the InnerChange program violates the Establishment Clause of the First Amendment of the U.S. Constitution and the Bill of Rights of the Iowa Constitution. The plaintiffs, whose funds are involuntarily used to finance the InnerChange program, accordingly seek injunctive and declaratory relief barfing the defendants from continuing to operate the program.
II. Jurisdiction and Venue 7. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 133t, 1343, and
1367. 8. The Court has the authority to grant declaratory relief pursuant to the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 and 2202. 9. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), as the InnerChange
program is operated within this district, and most of the parties are located within this district.
4

III. Parties 10. Plaintiff Americans United for Separation of Church and State ("Americans United")
is a non-profit, non-partisan, educational and advocacy organization incorporated and headquartered in Washington, D.C. Americans United is dedicated to preserving the constitutional principle of church-state separation as the only way to ensure religious freedom for all Americans. Americans United actively opposes the use of government money to fund religious organizations or religious activity. Americans United has over 75,000 members across the country, including hundreds of members in the State of Iowa.
11. Americans United is acting as counsel for Jerry D. Ashburn, the plaintiff in a related action filed in this court, Ashburn v. Mapes, et al., Case No. 4-02-CV-90447 (before the Honorable Robert W. Pratt). In order to be able to communicate by telephone with Mr. Ashburn, Americans United has sent money to the State for deposit into Mr. Ashburn’s inmate telephone account, and intends to continue to do so. Mr. Ashburn has made telephone calls to Americans Ur~ited to discuss the Ashburn v. Mapes action, and he will need to continue to do so in the future. These phone calls have been and continue to be paid for by money sent by Americans Ul~ited into Mr. Ashburn’s teIephone account. Profits that the State makes on these phone calls are used to fund the InnerChange program. Americans United objects to this use of funds obtained from them to finance the lnnerChange program. The State has confronted Americans United with a choice between foregoing communications with a client they represent, or funding a religious program which they oppose. By so doing, and by using funds obtained from Americans United to finance the InnerChange program, the State has harmed Americans United.
t2. Americans United also has members who are Iowa residents, pay taxes to the State of

Iowa, and oppose the use of public funds to finance the InnerChange program. These members of Americans United object to the use of any State funds, including funds obtained from inmate telephone calls and funds obtained through the settlement of tobacco litigation, to finance or support in any manner the InnerChange program. These members have been harmed by the use of State funds, and are faced with threatened harm from the further use of State funds, to support the InnerChange program instead of to serve lawful purposes that benefit Iowa taxpayers and residents. The interests that Americans United seeks to protect in this action - such as the prevention of the use of public funds to support religious instruction - are germane to Americans United’s purpose of preserving church-state separation. Neither the claims asserted herein, nor the relief requested herein, require the participation of individual members of Americans United in this lawsuit.
13. Plaintiff Carol Delp, a resident of Iowa who pays taxes to the State of Iowa, is the fiancee of an inmate in Newton. In order to be able to communicate by telephone with her fiancee, plaintiff Delp has sent money to the State for deposit into her fiancee’s inmate telephone account, and intends to continue to do so. Plaintiff Delp’s fiancee has made and continues to make telephone calls to plaintiff Delp, and these phone calls have been and continue to be paid for by money sent by plaintiff Delp into her fiancee’s telephone account. Profits that the State makes on these phone calls are used to fund the InnerChange program. Plaintiff Delp objects to this use of funds obtained from her to finance the InnerChange program, Plaintiff Delp subscribes to the Roman Catholic faith and does not subscribe to the religious beliefs taught in the InnerChange program. The State has confronted plaintiff Delp with a choice between foregoing telephone conversations with her fiancee, or funding a religious program which she

opl~.,scg, .[ ty so N~ing,.;~ad l~y 1.1s] ng funds obtained frmn plaintiff Dclp to fi naace the l~ncrCi~:mge progrmn, tl~ Slate has hr~rmcd plainliff Dclp.
l,+. Pltfi ,+ti f~ Ardcnu McKeag, a resident of Iowa, is the mother of aa inmate in Newton. In oal+~r t,o t+e able to communicate by telephone with hem son+ plaintiff McKe+~g h+ts
~ make te~cplmae call~g t~ pl~fi t~li ff McKeag, and these phone calls have been and crmt~nue to be pa~id li~r by mn~ey scat by plaintiff McKeag. Profits lhat lhe State make~ on these phone calls ugcd Io limd the hmc~Cl~:,~ge program, Plaintiff Mcgeag objects to this use of obtained fi’~,~ ~~ her ~o finance t’h;: [a actCI mage progrmn, Plaintiff McKcag subscribes to the Protestan~ Methodist faith anaL dc£c~ not agree with religious teachingg prcscnlcd in the Innc~hange p~x~gram, The N~e [m;g ccm frtml,ed plaintiff McKcag with a d~oice between foregoing caavc~’~ations with hec :.,on, or funding a mIigious progrma] that presents religious ~nstraction wilh
wl~M~ zi~e does a~[ agree,, By so doing, and by using fuads r~b[ai]~cd n-,,m plaintiff McKeag to
J’immcc the tnnerCh;mge l~rog~x~m, ~he State, llas l~armed plaintiff McKeag, [5. Ptainlfff [)nro~hy Redd, a residem of Iowa, is the wife of an inmate h] Newton. In
r~rtler to bc able 1o comm~rfic~lc by telephone will] her husband, plainliff Redd has sent money th:: StaLe For dcl.~sit into her hu~b:md’s inmate telcphoae account, ~ad intends to continue to do ,~o. Pl:fi n~ [f l¢cdd’s husband has made and conthmes t(~ make tclcphtme calls 1o plaintiff ~edd, and ihc~e phur~c calls I~avc beta ~md continue to be paid for by money sent by pl~fil~tiff Redd int~ h~.:r [~u~.;b;md~s tclcpkor;c acco~t~t. Profits t hat the N~atc makes on d~csc phone calls are used Io ~’~d Uw lm~cwCii:m~~ ]m~gram. Plaintiff Redd object~ to this u~e ~ff funds obtai~ed from her ~o
7

li.,~,’!nce the, I~nnc~Chm’~Lc pa~g..ram. P|aintiff R~dd subt.cfibcs to the Baptist fa~ th and does not aUce with r~li~.iou.+ l.e;,.chh~gs I)rCs~ted in ~he IrmctChange pt-ogrm~, The State has co~fronted i~,[~i nl~ff Rcdd with ;t cl~ oice between foregoing telcphone conversations with hcr husbm~ d, or flmdh~g a religi¢~us lW~unz Ibat pre~ent~ religious instructim~ wilh which she tlo~s not agree. By
16, Pl~finlifi~n I)e’ip, M~Keag, and Rcdd Iku’ther o~jec.t to Ihe u~e of any State ffmds, fl ~:lud itlg funds (~l~l.~i~:~.I from itun~;te l elepI~one ca]Is and funds obtai ned through the seIllement oF lobncco litigation, to fi~:mce or st~pport i~ any manner the Inner’Change program. Plah~tifN l)clp, McKcag, al/d Redd have been harmed by the ~se of Strife hinds, and arc faced wilh tl~re~t~ct~ed harm from the furlher u~e of State ftmd~, 1o support the hmerCh~mge program instead of I~ serve law ful pur~n~cs that benefit Iowa taxpayers and residents. Pluintirr, t)elp an~ Mcgeag ~cc bol~ i’f~r~ n,)¢ lot~glime ~mokers who have recently quit, and so they would suffer l~t~r~ iculuv harm fi’om tl~: tv.;e oF N~ds obt~fined through the settlement of tobacco litigation for the hmc, Clmn gc pmgrmn i~tatead of taw I)l public health purposes, and they have a pm~,icular interest in ~’ae~ri,~g tlmt thc~s¢ fm~ds are law[’ully used.
17. Dcl’c’nda~. l’t i~ua Fcllowship Minist6es is a noa-profit carporation that i~ inct~rp~:~r~.~ied in the Dist~’ict ~t" Columbia attd headquartered in Restore, Virginia. DeFendant l*ristm Fellowship pr~.;dzfi ~s itsc]l’ Io be "focused on one overriding vision: That God’s kingdom will b~: m:mil+es[ed as the redemptive ~acc and peace of Jesus Christ are experienced by those im[~,c~cd by cri me," t’~i~u:m Fellowshlp’s mission st~tement i~: "To exhort, equip, and assist tl~c (~l’mrch i~ i~s o~h?~s~ry [o pr[g~necs, ex-prisoners, victims, m~d fl~eir Nmitics, and in itn promotion
8

of biblical standards of justice in the criminal justice system." Prison Fellowship’s stated goals include "[m]aking [d]isciples: [e]nabling believers impacted by crime to become consecrated followers of Jesus Christ." Defendant Prison Fellowship operates the InnerChange program.
18. Defendant InnerChange Freedom Initiative is a non-profit corporation that is incorporated in Virginia, is headquartered in Reston, Virginia, and maintains an office in Newton, Iowa. Defendants Prison Fellowship and InnerChange have jointly signed contracts with the Iowa Department of Corrections ("DOC") that provide for their operation of the InnerChange program and for the State’s financing of the InnerChange program. Defendant InnerChange is wholly controlled by defendant Prison Fellowship. Defendant InnerChange appears to be a pass-through entity that transfers moneys received by it from government bodies to Prison FelIowship. Defendant InnerChange has been funded mainly or entirely by government funds. In its 2000-2001 fiscal year, over 99 percent of InnerChange’s total revenue of $689,877 came from government payments, including $421,907 from the State of Iowa (and the rest from the State of Kansas, where there is also a state prison with an InnerChange program). In the same fiscal year, all of InnerChange’s revenue was transferred to Prison Fellowship. Prison Fellowship then disbursed that money to pay for InnerChange program expenses and staff salaries.
19. Prison Fellowship and InnerChange are named as defendants herein on the grounds that their conduct in connection with the InnerChange program constitutes state action. Prison Fellowship and InnerChange operate the InnerChange program pursuant to contractual and administrative grants of rights and privileges to them by the State. A substantial portion of the InnerChange program’s budget is paid for by State funds, and the State otherwise significantly
9

aids the program, including by providing physical space and security for it. The State has delegated to Prison Fellowship and InnerChange the performance of a traditionally public function - supervision and rehabilitation of prison inmates. The InnerChange program is subject to substantial reguIation by the DOC. The DOC is entwined in the management and control of the InnerClaange program, including through significant involvement in the recruitment of participating inmates and in the resolution of numerous issues and disputes that arise with respect to the operation of the program. The contacts between DOC officials and InnerChange officials are so close and frequent that a symbiotic relationship exists between the State and Prison Fellowship/InnerChange. With full knowledge of the nature of the InnerChange program, the State invited the InnerChange program into Newton. The State is fully responsible for the conduct by Prison Fellowship and InnerChange described in this complaint, there is a close nexus between the State and that conduct, and the conduct may fairly be treated as that of the State itself.
20. In addition, and in the alternative, Prison Fellowship and InnerChange are named as defendants herein pursuant to Fed. R. Civ. P. 19. Prison Fellowship and InnerChange have a contractual relationship with the State that plaintiffs allege is unconstitutional. Part of the relief sought by plaintiffs in this action is an order requiring Prison Fellowship and InnerChange to return to the State all funds paid to them by the State; therefore, complete relief cannot be accorded among the other parties in the absence of Prison Fellowship and InnerChange. Resolution of this action in the absence of Prison Fellowship and IrlnerChange will subject the other parties to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations, for Prison FeIlowship and InnerChange could attempt to protect their contractual
10

relationship with the State through a separate action. The interests of Prison Fellowship and InnerChange in obtaining funds through their contract with the State and in indoctrinating prison inmates in their religious views would be affected if this action were to proceed without their participation.
21. Defendant Terry Mapes is sued herein in his official capacity as Warden of Newton and in his individual capacity. Defendant Mapes is responsible for overseeing operations at Newton. Defendants Mapes has permitted and continues to permit the InnerChange program to be operated at Newton. Defendant Mapes has known, or reasonably should have known, that the State’s sponsorship and financing of the InnerChange program cIearly violated the Establishment Clause and the Iowa Bill of Rights.
22. Defendant Waiter "Kip" Kautzky is sued herein in his individual capacity. Defendant Kautzky served as Director of the DOC from 1997 until December 3 I, 2002. Defendant Kautzky authorized the operation of the InnerChange program at Newton and the State financing of the InnerChange program. On behalf of the DOC, defendant Kautzky signed contracts with Prison Fellowship and InnerChange pursuant to which the InnerChange program has been operated and funded. Defendant Kautzky knew, or reasonably should have known, that the State’s sponsorship and financing of the InnerChange program clearly violated the Establishment Clause and the Iowa Bill of Rights.
23. Defendant John Baldwin is sued herein in his official capacity as Acting Director of the DOC and in his individual capacity. Defendant Baldwin has served as Acting Director of the DOC since January 1, 2003. Defendant Baldwin has permitted and continues to permit the InnerChange program to be operated at Newton and to be partially financed by the State.
11

Defendant Baldwin has the authority to terminate the InnerChange program, but he has not done so. Defendant Baldwin has known, or reasonably should have known, that the State’s sponsorship and financing of the InnerChange program clearly violated the Establishment Clause and the Iowa Bill of Rights.
24. Defendants Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr., and Donald Tietz are named as defendants herein in their official capacities as members of the Iowa Board of Corrections. The Board of Corrections authorized the operation of the InnerChange program at Newton and the State financing of the InnerChange program. The Board of Corrections has the authority to terminate the InnerChange program, but it has not done so. The members of the Board of Corrections knew, or reasonably should have known, that the State’s sponsorship and financing of the InnerChange program clearly violated the Establishment Clause and the Iowa Bill of Rights, and so, to the extent that they individually voted to approve the operation and financing of the LnnerChange program, they are named as defendants herein in their individual capacities.
25. The conduct by the State alleged to be unconstitutional in this complaint was authorized by the Board of Corrections and by defendants Kautzky, Baldwin, and Mapes.
26. Defendant John Doe, Director of the Iowa Department of Corrections, is sued herein {n his official capacity and in his individual capacity. The Director of the DOC is the DOC’s chief administrative officer. The Director of the DOC has the authority to terminate the InnerChange program. The Director of the DOC reasonably should know that the State’s spensorship and financing of the InnerChange program clearly violate the Establishment Clause and the Iowa Bill of Rights. Though the position of Director of the DOC is vacant as of the time
12

of the drafting of this complaint, the Director of the DOC is named as a defendant herein pursuant to Fed. R. Civ. P. 25(d).
IV. General Allegations A. The Pervasively Religious Nature of the InnerChange Program 27. Approximately 200 Iowa prison inmates participate in the InnerChange program.
The participating inmates are housed in a separate unit in Newton. InnerChange runs virtually every aspect of this unit except for security. The InnerChange program is pervasively sectarian. During nearly all their waking hours, participants are subjected to intensive, evangelical, BiSlically-based instruction from a Christian fundamentalist standpoint. Each inmate’s day starts with morning prayer. Most of an inmate’ s day consists of taking part in InnerChange’ s evangelical, fundamentalist, Biblically-based classes and programming. The wails in the Newton unit that houses participating inmates are lined with scripture. Program staff pray with participating inmates. Chapel service is mandatory on Sundays.
28. InnerChange’s own promotional and program materials include statements that describe the program as follows:
¯ (a) The InnerChange program "is a revolutionary, Christ-centered, values-based pre-release prison program supporting prison inmates through their spiritual and moral transformation."
¯ (b) "[T]he application of biblical principles is not an agenda item - it is the agenda."
¯ (c) "All programming - all day, every day - is Christ-centered."
13

¯ (d) The program is a "24 hour per day Christ-centered Bible-based program." ¯ (e) The program is "explicitly Christ-centered." ¯ (f) The InnerChange program in Iowa is "one of the prisons Prison Fellowship actually runs as a Christian institution." ¯ (g) "Utilizing a totally Christ-centered, biblically based curriculurn, IFI staff and a great number of Christian volunteers immerse member inmates in the transformational love of Jesus Christ." ¯ (h) "The IFI community serves as the crucible for learning and testing biblical principles." ¯ (i) "To facilitate this, biblical principles and core values are prominently displayed throughout the facility and promoted through memorization." ¯ (j) "All IN courses are Bible-based." ¯ (k) The program "require[s] regular participation in Bible studies and other religious programming." ¯ (1) "Biblical principles are integrated into the entire course curriculum of IN, rather than being compartmentalized in specific cIasses." ¯ (m) "Prisoners are taught biblical principles in the context of teachable moments." ¯ (n) The program "is anchored in biblical teaching that underscores.., the reality of a new life through Christ." ° (o) "Transformation" is the "major purpose of the program," and "lilt is brought about by depending on Christ and living according to the Bible."
t4

¯ (p) "The purpose of IFI is to have a prison community where members change ¯.. through a spirituai new birth through Christ."
¯ (q) "Inmates learn how God can heal them permanently, if they turn from their sinful past, are willing to see the world through God’s eyes, and surrender themselves to God’ swiIl."
° (r) In the first phase of the program, "[W]e are mainly concerned about your inside transformation - your relationship with God W....e want you to learn what it means to have a personal relationship with Christ .A...nd we want you to learn how to appIy the Bibte to your life."
¯ (s) "The approach of the InnerChange Freedom Initiative concerning serving those with any addictive behavior, including substance abuse addictions, shall be based on a faith-based Christian discipleship model; i.e., onIy Jesus Christ is the cure for addictions."
¯ (t) "[T]hrough biblical transformation, the deleterious effects of substance abuse can be overcome."
¯ (u) The program is "training up [inmates as] future spiritual leaders that will be about the business of spreading the Good News of Jesus Christ." 29. According to InnerChange’s promotional and program materials, the program includes the following courses and components:
¯ (a) MasterLife. "This course is a 26-week inductive bible study authored by the Southern Baptist Convention." It is "discipleship training.., a sequential, developmental, group disciplining process which enables the acknowledgment of Christ
15

as Master." ¯ (b) Survival Kit. This course "[h]elps new Christians chart their course for
survival in the Christian walk." The goals of this course include (i) "[1]earning about allowing Christ to indwell you;" (ii) "[t]eaching about how we become the body of Christ;" (iii) "[w]alking you[r] new walk in Christ;" and (iv) "[hlow to reach others through Prayer and Witnessing."
¯ (c) Parenting Seminar. "This course is a biblical-based parenting workshop." The three goals of the course are (i) "[t]o know that God has established the family and the father to be the head of the family;" (ii) "[t]o learn how to teach Godliness to prisoners’ children;" and (iii) "[t]o model and demonstrate godliness."
¯ (d) Mentoring. The goals of this program component include: (i) to "[t]each the biblical principles for close friendships;" (ii) to "[d]evelop a long-term relationship which centers first on Christ;" and (iii) to "[d]evelop a long-term relationship built on biblical principles of prayer, biblical foundations for living, and problem-resolution."
¯ (e) Experiencing God. This course "seeks to assist members in identifying ways in which God is active in their everyday lives."
¯ (f) Heart of the Problem. This course "focuses on God’s counsel in truth in contrast to the ’world’s counsel and reasoning.’"
° (g) Brothers Keepers. "This course is a weekly group meeting where members are taught biblical principles for loving, Christ-centered peer relationships."
° (h) Marriage and Family. "This interactive course teaches biblical principles using proven techniques to help the inmate and family members restore and rebuild their
16

family relationships." ¯ (i) Sycamore Tree. This program component provides "[a]n opportunity for the
church to help offenders, victims, and community members meet in the presence of Jesus." Its goais include "experienc[ing] Biblical confession, repentance, forgiveness, and reconciliation related to specific criminal acts" and "experienc[ing] salvation or Christian growth." B. The State’s Funding of Religious Instruction by InnerChange 30. The State entered into a contract with Prison Fellowship and InnerChange in 1999. Defendant Kautzky signed this contract on behalf of the State. The initial contract term was from September 1, 1999 through August 31, 2000. The contract was renewed every year, first for a term from September 1, 2000 through June 30, 2001, then for a term from July 1, 2001 through June 30, 2002, and most recent]y for a term from July 1, 2002 through June 30, 2003. The most recent contract renewal gives the State the option to further renew the contract for two one-year periods, the second of which would end on June 30, 2005. 31. The contract provides for state financing and support of InnerChange. Pursuant to the contract, the State has expended $282,000 on the InnerChange program in the 1999-2000 fiscal year, $373,000 in the 2000-2001 fiscal year, and $325,025 in the 2001-2002 fiscai year. Of these amounts, $229,000 in cash was paid directly to InnerChange for program costs during the 1999-2000 contract term, $191,000 in cash was paid to InnerChange for program costs during the 2000-2001 term, and between $191,000 and $230,000 in cash was paid to InnerChange for program costs during the 2001~2002 term. The State has been paying approximately 40 to 50 percent of InnerChange’s program costs.
17

32. The balance of the money provided by the State to support InnerChange has been spent on in-kind aid. The State leased and eventually purchased a modular building to provide office and program space for the InnerChange program. The State paid the full cost of leasing and purchasing this building, including a $59,000 installation fee in 1999, approximately $8,300 per month in lease payments from 1999 until early 2002, and a $61,576 purchase payment in 2002. The office and program space provided by the State for LnnerChange includes airconditioned classrooms, offices for InnerChange staff, a conference room for the staff, staff restroom facilities, library facilities, and recreational areas. The State also has been providing InnerChange with beds for the participating inmates, security staff for the Newton unit housing the program, access to chaplains and correctional counselors, and transportation for participating inmates.
33. The State’s payments to InnerChange have been made out of the DOC’s Inmate Telephone Rebate Fund. The DOC charges inmates rates that are substantially above market rates to make telephone calls to families, friends, and attorneys. Phone service in Iowa correctional facilities is provided and operated by a state agency called the Iowa Communications Network ("ICN"). The charges imposed on inmates for telephone calls are far greater than the costs incurred by the ICN and the DOC in connection with the calls. The State thus makes substantial profits on inmate telephone calls. The State places these profits in the Inmate Telephone Rebate Fund. By law, the DOC is required to use all funds deposited in the Inmate Telephone Rebate Fund "for the benefit of inmates." However, since the InnerChange program began, a substantial portion of the funds placed in the Inmate Telephone Rebate Fund has been spent on the InnerChange program.
18

34. h~ c~thc:r word,~, l l~.’.; Slate, ha~ been fltnding lim~rChaagc out of profits ~hat the State ~aakes <m i0tnale t¢lepb~ne calls, including calls made to plaintiffs ~md paid for out ofl’unds dcposiIed hy pl ai mi ffs i~t~.~ i n matte telephone accounts, q’he Stem has tI~e~cby been expropffating ft.m,~s liom l’a~nily mcml~e~z and t)iends of inmates (includi~g pIu.intiffs Dctp und McKeag), ~tlto;i;t~ys (ff inl~[t[~s (i~~clt~d ing pl ai~ti I’f Americans United), and inmates themselves 1o flnallce
thcm~el vcs m’e prcscntcd by the S1 ate with a c~oice of fozcgohag telephone conversations wilh tI~ir rel;.~tivcs or othc~ pc~-sons who are important to fl~em, or funding rcllgious i~structio~ with
35. For the 2093 fiscal yeai; the State has ifllucatcd $229,250 fi’om the Inmate Telephone Rebate IZtm0 tier I.~e l~ncrChange program. Of this amount, $191,625 is being paid to .Imtc~ Chnnge for [~-ogcum costs. The rest is being used by (l~e State lo provide non-cash services
~up[x~rt tl~e prog~m~. Moreover, an ztddifional $172,591 has been al[ocaled by the State from I~e:~I~l~y l~wans T~b~’cf~ "l¥1lgt Fend for the InnerChangc program. The funds in the Tobacco ’l’r~:~ Fund were obt:~tn~[ hy tBc State through lhe settlement of litigation between lhe Stale tob~ c~.:~ c~m ~pani es a~ ~si~~kt, oul of conduct by the tobacco companies bnrm fi~l to Iowa smokers others. U t~d:~r I~nva Code ~ 12.65, "[m]oneys deposited in tt~e heaflthy .Iowan~ tobacco trust 1Lind shall be used oaly... [k~r ~uq~oses ~vlated to l~ealth c~re, substance abt~se treatme~t and c~lk~cmc~t, iob~cco t~e prevention and contrN, and (~lher pt.ui~oae~ relating to lhe needs of ldr¢.~, :ldults and families in lhe stale," However, the State in~ends to use the Tobacco Trust
36. q Ire t1~.,f%mt,~ts In:we publicly taken the position theft the State Nnds paid to 19

InnerChange for programming costs are expended only for "non-sectarian" portions of the program. In fact, however, the State’s payments to InnerChange are being used to actually pay for religious instruction, and to finance and support a pervasively religious program. According to InnerChange’s own promotional materials, "Biblical principles are integrated into the entire course curriculum of IFI, rather than being compartmentalized in specific classes," and "[a]ll programming - all day, every day - is Christ-centered." k is therefore impossible to separate the sectarian aspects of the InnerChange program from the non-sectarian. The InnerChange program is wholly permeated by religion and is thus pervasively sectarian.
37. The manner in which InnerChange purports to distinguish sectarian expenses and non-sectarian expenses confirms that State funds are in fact being used by InnerChange to pay for and to support religious instruction. InnerChange attempts to allocate to each of its courses and program components a percentage that supposedly represents a "non-sectarian" portion. However, since "all programming - all day, every day - is Christ-centered" and "Biblical principles are integrated into the entire course curriculum," these allocations are without any validity. And courses that are treated as primarily non-sectarian in InnerChange’s percentage allocations are described in primarily religious terms in InnerChange’s program and promotional materials. Indeed, InnerChange treats as 100 percent non-sectarian an "Addiction Recovery" class that relies heaviIy on the Alcoholics Anonymous program, even though Alcoholics Anonymous is a religious program (as many federal court decisions have expressly held).
38. Likewise, InnerChange assigns each of its staff members a percentage that supposedly represents the non-sectarian portion of their work, and claims to bill the State only for that portion of each staff member’s salary. For example, InnerChange claims that staff members
20

~¢rCc ~t to s~ctadnn w~rk. hmerCha~g¢ lk[ahe~ ~laim~ tb;~t ~ percent of the work don~ by Offk~e hdmm~[t’ato~" ~l~ukl b~ treated as non-~ectarim~, even though fl~ Office Administrator’s wo~-k coa~sln of st:pp~xt larks lbrn pervasively ~ctarian program. And InncrC~an~¢ bills the f~talc for il.cItl~ oi’l~r {hn~ salaries, such ~s "advertising," "matecials and supplies," "program and tr;m~ing nmle,~ uls," "l.~a~;tag~: and freight," "pri n tit~g," "tc!cphone," and "mcala for staff and vt4untec,~’s,’" wiflmt~ eve~ nttompting In divide these ilems ialo sectarian and non-sectarian c~mponcnts. Since ihc’.,~;o i Ictus support pervasively religious progrmnming, they cannot properly be Ire~fled ;~ ~iou-gec[+a ~.mL yet [nnct’Change S~ tteatn them anyway.
39. la addi/k)m ~lm Sta~e bos not created any safeguards designed to prevent ~he u~e of mcmey p;~id io hm~:rCh;mge for religious instruction. The State does not monitor the ]tme~’Chr~rl~,c pro~.~ ;.m~ to Wy to keep slate money from being t~sed lbr religious programming.
d 0, Moreo~er~ ~.,~a~e funds paifl to lnne~hange supplant and do not ~upplement private funds, la Atwil 1997, bcff~’a establishing the InncrChange program in Iowa, Prison Fellowship cs~bl~shcd ar~ hmer(2~r,g~: p~x~grarn in a prison in Texa~, which is still in place. Stare fund~ h:we. nni been used in "f~e~ti~s to pay h~r any lnnerChaage program costs there. The State of Iowa is II,us using Gtale Ftmd.; to finance a religions pmgnm~ that could be successfl~lly financed wholty wi~ h p~ iv~l c~al
41. Furlh~.’m~ce~ the Sla[e i~ delivering government Rtnds directly to lmae~Change. Inae~Chnngc it~en tm ~s 1l~c money over to PiSson Fellowship, which disburses the money to pay lb~" lm~e~ Cham[?e two:Vmn c~}sts and salaries of Inne~Ch ange sin FL Stu~e cash is therefore being
2~

42. Finally, the State is providing InnerChange with substantial in-kind aid, such as

physical program and office space and facilities, which is not restricted to secular use but is used

to support the entirety of InnerChange’s pervasively religious programming.

C. The InnerChange Program’s Religious Discrimination Among Inmates

43. InnerChange claims that the program is open to inmates of all faiths. In fact,

however, the InnerChange program discriminates among inmates based on religion and is

available only to inmates who subscribe to or are willing to actively cooperate in being converted

to a fundamentalist, evangelical, form of Protestant Christianity.

44. InnerChange screens and selects its participating inmates. InnerChange requires

participating inmates to "be willing to productively participate in a program that is explicitly

Christian in both content and delivery." Non-Christian inmates are eligible only if they are

"willing to actively participate in a Christ-centered, biblically based program." All inmates who

wish to participate must sign an agreement stating that they understand that "the program

contains religious content and is based upon Christian values and principles." InnerChange’s

criteria for selecting inmates include "demonstrated commitment to participate in the IN

program" and "sincere motivation to cooperate."

45. Recruitment materials given to prospective participants make clear that there is a

place in the InnerChange program only for those who are willing to embrace fundamentalist

Christianity.The statements made in these materials to inmates who are considering the program

include:

¯ (a) "You need to understand that this is a Christian program." ¯ (b) "The program confronts prisoners with the choice of embracing new Iife in

22

Christ and personal transformation, or remaining in the stranglehold of crime and despair."
¯ (c) "IFI is a 24-hour-a-day program that promotes personal transformation of prisoners through the power of the Gospel."
¯ (d) "IT]he program is based on the Gospel of Jesus Christ." ¯ (e) "An overall goal of Phase 1 [of the program] is for you to begin life transformation through the Gospel of Jesus Christ." ¯ (f) "True transformation begins with salvation, also called conversion." ¯ (g) "Conversion is when you turn away from what is negative and turn to Christ." ¯ (h) "Then you try to live your life by His example and instructions found in the Bible." ¯ (i) "As you are transformed into the image of Christ, you have more and more integrity." ¯ 0) "Above all else," through the program, "you may discover the transforming Iove of Jesus Christ." ¯ (k) The program offers "a different group of people to hang with. Christians with positive values." ° (1) "All IN graduates are expected to have ... a Christian mentor.., and a home church when released." 46. Selection for the InnerChange program involves a six-week introduction program followed by a one-month orientation program, both of which are conducted by Prison
23

FeIlowship. As part of this process, prospective participants must complete a "Survey of Religious Beliefs and Practices," where they are asked to indicate their level of agreement or disagreement with various religion-related statements. One subsection in this survey is a "Religious Attitude Inventory," where the prospective participants must agree or disagree with religion-reIated statements such as "Christ died for sinners." Another subsection is a "Scriptural Literalism Scale," where agreement or disagreement must be expressed with statements such as "[t]he precise words spoken by God may be found in the scriptures." InnerChange selects participants for its full program by evaluating the performance of prospective participants in the introduction and orientation programs and examining their "degree of spiritual walk." The DOC does not select InnerChange participants; it only has veto power over InnerChange’s selections.
47. Once inmates are actually admitted into the InnerChange program, they continue to be judged through religious criteria. They receive monthly evaluations based on various criteria or~ a scale of 1 to 5. Many of these criteria are explicitly religious, including:
¯ (a) "As faith proceeds joy, demonstrates a belief in Jesus Christ." ¯ (b) "Puts God first in his life, ’serves no idol’ and is quick to praise God." ¯ (c) "Prays in the Spirit." ¯ (d) "Has a vision/understanding of the Father and is enlightened spiritually as demonstrated by his personal attitudes." ° (e) "Conquers trials and tribulations through spending time in His Word." ¯ (f) "Maintains high spiritual morale without complaining and criticizing." ¯ (g) "Acts as a witness of God’s grace to others." Obtaining an average score of less than 2 on an evaluation is grounds for removal from the

InnerChange program. Obtaining an average score of 3 in each of eight behavior areas, some of which are dominated by religious criteria, is necessary to advance from one phase of the program to the next phase.
48. Any non-Protestant inmates who decide to and are permitted to participate in the InnerCl~ange program are given little opportunity to continue to adhere to their faith. Program participants who are Catholic, Muslim, or of other non-Protestant faiths are permitted to attend religious services other than the Protestant ones provided by the program only if the time of the services does not conflict with program activities. Special requests made by non-Protestant program participants to accommodate their religious practices are not granted if they would keep an inmate from fully taking part in the program or from meeting program requirements. Faiths other than Protestant Christianity are denigrated during the program. As stated in an InnerChange brochure, "It’s the earnest desire of IFI that residents convert to Christ and follow His ways that lead to transformation."
49. Moreover, the State’s sponsorship of the InnerChange program creates incentives for inmates to undertake religious indoctrination in the specific tenets of the program. The State does not offer any program similar to InnerChange for inmates who do not subscribe to and are not willing to be converted to the religious tenets taught in the InnerChange program. And inmates in the InnerChange program receive numerous privileges that are not available to the other inmates in Newton. Unlike other Newton inmates, who are housed in what is referred to as a "lock-up unit," participants in the InnerChange program are housed in what is referred to as an "honor unit." Participants in the InnerChange program are given keys to their cell doors. The other inmates in Newton are not, and the locks to their cell doors are controlled solely by
25

correctional officers. Participants in the InnerChange program are permitted to 1cave their cells at night, while other Newton inmates are locked in their cells for the night. Participants in the InnerChange program have access to bathrooms stalls that are divided by partitions and have doors with sliding locks. The other inmates in Newton have access ozaly to toilet stalls that are located in the middle of their cells, with no privacy. Participants in the InnerChange program are housed two to a cell, while most other inmates in Newton are housed three to a cell. Participants in InnerChange live in cells with wooden doors; other inmates in Newton live in cells with steel doors.
50. The "honor unit" that now houses InnerChange participants was formerly reserved for inmates who established a record of good behavior while incarcerated and did not represent major security risks, In order to make room for the InnerChange program, the State expelled the inmates who were living in the "honor unit" from that unit.
51. Participants in InnerChange also have the following privileges that are denied to the other inmates in Newton:
(a) special visiting privileges; (b) religious worship services with members of their family~ (c) free telephone calls to their family; (d) the fight to make videos and send them home to their family; (e) preferences for better jobs at Newton; (f) certain certified treatment and rehabilitation programs; (g) payment of an allowance in exchange for taking education classes; (h) certain education classes of a higher degree and quality than what is available
26

to other inmates; (i) different discipIine procedures that tend to result in less severe discipline for
violations of prison regulations; (j) access to computers and word-processing equipment; (k) free religious articles; (1) additional and different clothing; (m) access to art supplies and opportunities to do art work; (n) the right to continue relationships with volunteer counselors and mentors after
release; (o) assistance with housing and jobs upon release; (p) access to big-screen televisions; (q) a music room; (r) access to musical instruments; (s) three-ring binders; and (t) access to food prepared by outside vendors during celebrations.
52. Inmates at Newton must choose between foregoing all of the above-described privileges or submitting to intensive indoctrination in religious tenets to which they do not subscribe.
53. Furthermore, recommendations from InnerChange staff members can favorably influence parole decisions. To receive such recommendations from InnerChange staff, inmates must successfully proceed through the InnerChange program. The State has thus created a system trader which inmates can increase their chances of being paroled by submitting to and
27

accepting intensive indoctrination in fundamentalist Christian religious teachings.
D. The InnerChange Program’s Religious Discrimination in Employment
54. InnerChange and Prison Fellowship have publicly-announced policies of employing
only Christians as staff members and of requiring all volunteers to be Christian. InnerChange’s
website states that InnerChange "requires that all staff and volunteers are Christians who are
living vital, empowered lives." The website further states, "IFI staff and volunteers seek to
model Christ through being controlled by the fruit of the Spirit." Similar language appears in
paper InnerChange promotional and informational materials.
55. InnerChange staff members and volunteers must subscribe to and abide by Prison
Fellowship’s Statement of Faith, which reads:
We believe in one God, Creator and Lord of the Universe, the co-eternal Trinity; Father, Son, and Holy Spirit.
We believe that Jesus Christ, God’s Son, was conceived by the Holy Spirit, born of the Virgin Mary, lived a sinless life, died a substitutionary atoning death on the cross, rose bodily from the dead and ascended to heaven where, as truly God and truly man, He is the only mediator between God and man.
We believe that the Bible is God’s authoritative and inspired Word. It is without error in all its teachings, including creation, history, its own origins, and salvation. Christians must submit to its divine authority, both individually and corporately, in all matters of belief and conduct, which is demonstrated by true righteous living.
We believe that all people are lost sinners and cannot see the Kingdom of God except through the new birth. Justification is by grace through faith in Christ alone.
We believe in one holy, universal, and apostolic Church. Its calling is to worship and witness concerning its Head, Jesus Christ, preaching the Gospel among all nations and demonstrating its commitment by compassionate service to the needs of human beings and promoting righteousness and justice.
We believe in the necessity of the work of the Holy Spirit for the individual’s new birth and growth to maturity, and for the Church’s constant renewal in truth, wisdom, faith,
28

holiness, love, power, and mission. We believe that Jesus Christ will personally and visibly return in glory to raise the dead and bring salvation and judgment to completion. God will fully manifest His kingdom when He establishes a new heaven and new earth, in which He will be glorified forever and exclude all evil, suffering, and death. 56. State of Iowa funds are used to pay a portion of the salary of each InnerChange staff member. The State is thereby financing religious discrimination in employment, including with funds expropriated from plaintiffs. Moreover, InnerChange’s contract with the State specifically provides that InnerChange may base employment decisions upon religious criteria, notwithstanding any federal, state, or local laws, rules, ordinances, regulations, or orders to the contrary. The State is thus significantly aiding invidious religious discrimination in employment by Prison Fellowship and InnerChange, and that discrimination is fairly attributable to the State. E. The State’s Backroom Agreement With and Cooperation With InnerChange 57. The State agreed to allow Prison Fellowship to start the InnerChange program in Iowa without first making similar opportunities available to other groups. In early 1998 and mid1998, Prison Fellowship officials had discussions with defendant Kautzky and other State officials about bringing the InnerChange program to Iowa. In mid-1998, defendant Kautzky and other State officials agreed to allow an InnerChange program to be started in Iowa. After this agreement was privately reached, the State issued a public Request for Proposal that was tailored for the InnerChange program. 58. This Request for Proposal, issued in August 1998, was entitled "Request for Proposal for Non-Compensated Values Based Pre-Release Program." Though nominally inviting open bidding on a contract to provide "values based pre-release" programming, the Request for

Proposal was actually designed to result in Prison Fellowship being awarded the contract. The Request for Proposal falsely stated that it sought only "non-compensated services" and that "[t]here will be no state monies or compensation, in any form, given to the Contractor for the programming services provided." In fact, the State agreed to pay a substantial portion of the InnerChange program’s costs. Understandably, only Prison Fellowship responded to the Request for Proposal.
59. The manner in which the State agreed to contract with Prison Fellowship reflects State endorsement of and preference for religion in general and the specific religious tenets of the InnerChange program in particular. The DOC does not make available to inmates any "values based pre-release" programming from a secular perspective or from the perspectives of faiths other than Inne~hange’s fundamentalist, evangelical Christian belief system.
60. In addition, state officials closely cooperate with InnerChange officials with respect to administration of the InnerChange program. State officials and employees have regular and close contact with InnerChange officials and employees with respect to numerous issues that arise out of the operation of the program. State officials also provide considerable assistance to InnerChange with respect to recruitment of inmates for the program. The State’s involvement with the InnerChange program has thereby resutted in excessive government entanglement with religion.
30

V. Claims for Relief Count One
(Violation of the Establishment Clause of the U.S. Constitution) 61. Paragraphs 1 through 60 above are incorporated herein as if fully set forth herein. 62. The Establishment Clause of the First Amendment of the Constitution of the United States provides, "Congress shall make no law respecting an establishment of religion." The Establishment Clause applies with full force and effect to the acts of state and local government entities and officials pursuant to the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. 63. By sponsoring and financing the InnerChange program, the defendants have violated and continue to violate the Establishment Clause in many ways, including as described below. 64. The State’ s sponsorship and financing of the innerChange program has the primary effect of advancing religion. It results in governmental indoctrination. State funds are being used to finance and support a pervasively reIigious program, and those funds are put to specifically religious use. Government cash aid is being delivered directly into the coffers of religious organizations. This aid supplants and does not supplement private funds. No adequate safeguards exist to prevent the aid from being used for religious instruction. 65. The State’ s sponsorship and financing of InnerChange gives inmates incentives to subject themselves to religious indoctrination, and coerces them to do so. Inmates must choose between submitting to indoctrination in religious tenets with which they do not agree, or foregoing numerous privileges offered to participants in the InnerChange program. The InnerChange program defines the recipients of government benefits by reference to religion.
31

Only those inmates who subscribe to evangelical, fundamentalist Christian beliefs or are willing to be converted to those beliefs can participate in the program.
66. The State’s sponsorship and financing of the InnerChange program conveys to reasonable observers a message of endorsement of religion in general and of the specific form of Christianity taught by the InnerChange program in particular. The State’s sponsorship and financing of the InnerChange program constitutes a governmental preference for Christianity in general and for the specific form of Christianity taught in the InnerChange program in particular.
67. The State is financing invidious discrimination in employment based on religion by Prison FelIowship and InnerChange. Prison Fellowship and InnerChange require all of their staff members to be Christians and to subscribe to and abide by Prison Fellowship’s Statement of Faith, and the State is partly paying the salaries of InnerChange staff.
68. Other than continuing to take responsibility for security, the State is allowing InnerChange to run the section of Newton in which participating inmates are housed. The State is thereby delegating government power to a religious organization.
69. State officials closely cooperate with IrlnerChange officials with respect to administration of the InnerChange program. The InnerChange program has thereby resulted in excessive government entanglement with religion.
70. By violating the Establishment Clause as set forth above, the defendants have, under color of statute, ordinance, regulation, custom, and/or usage, deprived plaintiffs of rights secured by the First and Fourteenth Amendments of the U.S. Constitution, entitling pIaintiffs to a remedy under 42 U.S.C. {} 1983.
71. By virtue of the defendants’ violations of the Establishment Clause, plaintiffs are
32

entitled to injunctive relief, declaratory relief, and nominal damages.
Count Two (Violation of Section 3 of the Iowa Bill of Rights) 72. Paragraphs 1 through 71 above are incorporated herein as if fully set forth herein. 73. Article I, Section 3, of the Iowa Constitution provides, "The General Assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister, or ministry." 74. By expropriating funds from plaintiffs and using those funds to pay for the support of a ministry, and for the reasons given in Count One, defendants have violated Article I, Section 3 of the Iowa Constitution. 75. By virtue of defendants’ violations of Article I, Section 3 of the Iowa Constitution, plaintiffs are entitled to nominal damages and declaratory relief against all defendants, and injunctive relief against defendants Prison Fellowship and InnerChange.
VI. Prayer for Relief 76. Paragraphs 1 through 75 above are incorporated herein as if fully set forth herein. Injunction 77. The plaintiffs have no adequate remedy at law. WHEREFORE, plaintiffs
respectfully request a permanent injunction prohibiting continued operation of the InnerChange program in Newton or in any other Iowa correctional facility. In the alternative, or in addition,
33

plaintiffs respectfully request a permanent injunction: (a) prohibiting the payment of any State funds to Prison Fellowship or
InnerChange and the use of any State funds or State in-kind aid to otherwise support the InnerChange program in any manner (and, alternatively, prohibiting the use of any State funds to pay any portion of the Salaries of Prison Fellowship or InnerChange employees so long as Prison Fellowship or InnerChange continue to use religious criteria to select employees); and
(b) requiring that benefits given to inmates participating in the InnerChange program be made available to non-participating inmates and that "values based prerelease programming" from the standpoints of all faiths and from a secular standpoint be made available to inmates.
Declaratory Judgment 78. An actual controversy exists between the parties as to whether the operation of the InnerChange program, and the State’s financing and sponsorship of the program, violate the Establishment Clause of the U.S. Constitution and the Bill of Rights of the Iowa Constitution. WHEREFORE, plaintiffs respectfully request a declaratory judgment declaring that:
(a) defendants Mapes, Kantzky, Baldwin, Doe, Belle, Colston, Mills, Neu, Overton, Reed, and Tietz violated the U.S. and Iowa Constitutions by authorizing the operation of the InnerChange program in Newton, the State’s financing and sponsorship of the InnerChange program, and the other conduct described in this complaint; and
(b) defendants Prison Fellowship and InnerChange violated the U.S. and Iowa Constitutions by discriminating against inmates based on their religious beliefs in the
34

offering and provision of "values-based pre-release programming," and by discriminating in employment based on religion with respect to positions partly financed with government funds.
Nominal Damages 79. Plaintiffs’ rights under the Establishment Clause of the U.S. Constitution and the Bill of Rights of the Iowa Constitution were violated by defendants. WHEREFORE, plaintiffs respectfully request non-final damages against:
(a) defendants Mapes, Kautzky, Baldwin, and Doe, for authorizing the operation of the InnerChange program in Newton, the State’s financing and sponsorship of the InnerChange program, and the other conduct described in this complaint;
(b) those defendant members of the Board of Corrections who individually voted to authorize the operation of the InnerChange program in Newton and the State’s financing and sponsorship of the InnerChange program, for so doing; and
(c) defendants Prison Fellowship and InnerChange, for utilizing government funds to support discrir~nation based on religion in the provision of government services and in employment.
Recoupment 80. Defendants Prison Fellowship and InnerChange knew or reasonably should have known that the State’s payments to them for hanerChange program costs were unconstitutional, and therefore they could not have reasonably relied on the payments for their expenses. Return to the State of the funds paid by the State to InnerChange would protect and advance the constitutional rights raised by this action by deterring Prison Fellowship, hanerChange, and other
35

private organizations from accepting government funds in the future where, as here, such payments of funds are clearly unconstitutionaI. WHEREFORE, plaintiffs respectfully request an order requiting Prison Fellowship and InnerChange to return to the State all payments ever made to them by the State, and requiting that the State restore those monies to the special state funds (such as the Inmate Telephone Rebate Fund) from which they were taken.
36

Other Relief 81. Plaintiffs further respectfully request an order awarding plaintiffs the costs of this action, including attorneys’ fees, pursuant to 42 U.S.C. § 1988. 82. Plaintiffs further respectfully request that the Court award any other relief that the Court deems just and proper. Respectfully submitted,

By: [~a,zk g~.~A~ Dean Stowers, Esq.
Dean Stowers, Esq. Rosenberg, Stowers & Morse 1010 Insurance Exchange Building 505 Fifth Avenue Des Moines, Iowa 50309 Phone: (515) 243-7600 Fax: (515) 243-0583 E-mail: deanstowers @ aol.com Cooperating Attorneys, Americans United for Separation of Church and State

Date:

By: ~Alex J. Luchenitser, Esq.

Date:

Ayesha N. Khan, Esq., Legal Director* (D.C. Bar No. 426836**) Alex J. Luchenitser, Esq., Litigation Counsel (D.C. Bar No. 473393**) Americans United for Separation of Church and State 5 t 8 C Street NE Washington, DC 20002 Phone: (202) 466-3234 Fax: (202) 466-2587 E-mail: khan@au.org / luchenitser@au.org *lead counsel **petition for admission pro hac vice submitted herewith
Counsel for plaintiffs

37

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DMSION

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; CAROL DELP; ARDENE McKEAG; DOROTHY REDD; and SANDRA SOBOTKA;

No. 4:03-cv-90074 Hon. Robert W. Pratt

Plaintiffs,

PRISON FELLOWSHIP MINISTRIES; INNERCHANGE FREEDOM INITIATIVE; TERRY MAPES, in his official capacity as Warden of the Newton Correctional Facility and in his individual capacity;, WALTER "KIP" KAUTZKY; JOHN BALDWIN, in his official capacity as Deputy Director of the Iowa Department of Corrections and in his individual capacity;, GARY MAYNARD, in his official capacity as Director of the Iowa Department of Corrections and in h.is individual capacity;, and HAYWOOD BELLE, RENEE SNEITZER, ROBY-N MALLS, ARTHUR. NEU, SUELLEN OVERTON, WALTER REED, JR., mad DONALD TIETZ, in their official capacities as members of the Iowa Board of Corrections and in their individual capacities;
Defendants.

FIRST AMENDED COMPLAINT.

I. Introduction 1. Defendant Prison Fellowship Ministries ("Prison Fellowship") operates a pervasively
religious pre-release program called the InnerChange Freedom Initiative ("InnerChange," or "the InnerChange program," or "IFI") in the Newton Correctional Facility ("Newton") in the State of iowa ("the State"). Inmates who participate in the IrmerChange program are housed in a separate unit of Newton, where IrmerChange immerses them in "24-hour per day Christ-centered Biblebased program[ruing]." During nearly all their waking hours, participating inmates are subjected to intensive, evangelical, Biblically-based instruction from a Christian fundamentalist standpoint. In rooms whose walls are lined with scripture, the inmates study the Bible, memorize Bible verses, and pray. In Prison Fellowship’s own words, the "major purpose oft_he program" is "transformation" to be "brought about by depending on Christ."
2. A substantial portion of the InnerChange program’s budget is paid for by State funds taken from profits the State makes offtelephone calls that are placed by inmates and that are often paid for by family members, friends, and attorneys ofimrtates. In addition, State funds received through the settlement of tobacco litigation, as well as State general funds obtained from Iowa taxpayers, have been used to support the InnerChange program. State moneys that were obtained frolr~ persons who do not subscribe to the religious teachings of the InnerChange program and from a fired that was created to generally benefit the public health have thus been used and allocated to pay for pervasively religious, evangelical, fundamentalist Christian instruction.
3. In order to take part in the IrmerChange program, inmates must agree to be subjected to intensive instruction in irmerChange’s fundamentalist Christian teachings. Recruitment
2

materials provided to prospective participants make clear that there is a place in the InnerChange program only for those who subscribe to or are willing to actively cooperate in being converted to a fundamentalist, evangelical form of Christianity. Prospective participants are told that "It]he program confronts prisoners with the choice of embracing new life in Christ and personal transformation, or remaining in the stranglehold of crime and despair," that "[t]rue transformation begins with salvation, also called conversion," and that "[c]onversion is when you mm away from what is negative and turn to Cla-ist." In order to successfally proceed through the program, inmates must receive passing marks on evaluations in which they are rated on explicitly religious criteria, such as "[a]s faith proceeds joy, demonstrates a belief in Jesus Christ," "[p]rays in the Spirit," and "[p]uts God first in his life, ’serves no idol’ and is quick to praise God." The State’s sponsorship and financing of the IrmerChange program thus discriminates against inmates who do not subscribe to the particular form of Christianity taught by InnerChange.
4. inmates who participate in the InnerChange program receive numerous privileges denied to non-participating inmates. ItmerChange participants live in an "honor unit" where they are given keys to their own cells and access to private bathrooms, while non-participating inmates live in a "lock-up unit" where correctional officers have sole control over locks to cell doors and where the toilet stools are located in the middle of ceils. IrmerChange participants receive a broad range of other benefits denied to non-participating inmates, such as additional visits with family members, free telephone calls to family members, access to computers and word-processing equipment, and access to a large, projection-screen television. The operation of the IrmerChange program therefore gives inmates incentives to subject themselves to religious indoctrination.

5. Prison Fellowship and InnerChange haw a publicly announced policy of employing only Christians as staff members and allowing only Christians to serve as volunteers. All In.nerChang¢ employees and volunteers must subscribe to a fundamentalist Statement of Faith affirmkng, among other things, that they "believe that all people are lost sinners and cannot see the Kingdom of God except through the new birth" and "that the Bible... is without error in all its teachings, including creation, history, its own origins, and salvation." State fimds are used to pay portions of the salaries of InnerChange employees. The State is thereby financing religious discrimination in employment.
6. For these and other reasons, the State’s sponsorship and financing of the IrmerChange program violates the Establishment Clause of th~ First Amendment of the U.S. Constitution and the Bill of Rights of the Iowa Constitution. The plaintiffs, whose funds arc involuntarily used to finance the kmerChange program, accordingly seek injtmctive and declaratory relief barring the d¢fendants from ~ntinuing to operate the program.
lI. Jurisdiction and Venue 7. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and
1367. 8. The Court has the authority to grant declaratory relief pursuant to the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 and 2202. 9. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), as the InnerChange
program is operated within this district, and most of the parties are located within this district.

III. Parties 10. PlaintiffAmericans United for Separation of Church and State ("Aanericans United")
is a non-profit, non-partisan, educational and advocacy organization incorporated and headquartered in Washington, D.C. Americans United is dedicated to preserving the constitutional principle of church-state separation as the only way to ensure religious freedom for all Americans. Americans United actively opposes the use of government money to fund religious organizations or religious activiD’. Americans United has over 75,000 members across the country, including hundreds of members in the State of Iowa.
11. Americans United attorneys are representing the plaintiffs - Jerry D. Ashbur~ Louis Boldon, Bryan Chandler, Robert Engle, Joel McKeag, Troy Redd, Bilal Shukr (a.k.a. Bobby Shelton), Kevin Watson, and Valentino Whitaker (collectively, "the Ashbum Plaintiffs") - in two actions that have been consolidated with this one, Ashburn v. Mapes, et al., Case No, 4:02cv-90447, and Shukr v. Kautzky, et aL, Case No. 4:03-cv-90101. In order that the Ashburn Plaintiffs could communicate by telephone with their Americans United attorneys, Americans United has sent money to the State for deposit into the iva-aate telephone accounts of the Ashburn Plaintiffs, and intends to continue to do so. The Ashbum Plaintiffs have made telephone calls to Americans United to discuss the Ashburn v. Mapes and Shukr v. Kautzlcy actions, and they will need to continue to do so in the future. These phone calls have been and continue to be paid for by money sent by Americans United into the Ashbum Plaintiffs’ telephone accounts. Profits that the State makes on these phone calls are used to ftmd the InnerChange program. Americans United objects to this use of funds obtained from it to finance the IrmerChange program. The State has confi:onted Americans United with a choice between foregoing attorney

communications with clients, or fimding a religious program which it opposes. By so doing, and by using funds obtained from Americans United to finance the ImaerChange program, the State has harmed Americans United.
12. Americans United also has members who are Iowa residents, pay taxes to the State of Iowa, and oppose the use of public funds to finance the irmerChange program. These members of Americans United object to the use of any State funds (including funds obtained from irtmate telephone calls, funds obtained through the settlement of tobacco litigation, and State genera[ funds obtained through taxes) to finance or support in any mariner the InnerChange program. These members have been harmed by the use of State funds, and are faced with threatened harm from the further use of State funds, to support the InnerChange program instead of to serve lawful purposes that benefit Iowa taxpayers and residents. The interests that Americans United seeks to protect in this action - such as the prevention of the use of public funds to support religious instruction- are germane to A~aericans United’s purpose of preserving church-state separation. Neither the claims asserted herein, nor the relief requested herein, require the participation of individual members of Americans United in this lawsuit.
13. Plaintiff Carol Delp, a resident of Iowa who pays taxes to the State of Iowa, is the fiancee of an inmate in Newton. Irt order to be able to communicate by telephone with her fiancee, plaintiffDelp has sent money to the State for deposit into herfiancee’s inmate telephone account, and intends to continue to do so. PlaintiffDelp’s fiancee has made and continues to make telephone calls to plaintiff Delp, and these phone calls have been and continue to be paid for by money sent by plaintiffDelp into her fianeee’s telephone account. Profits that the State makes on these phone calls are used to fund the IrmerChange program. PlaintiffDelp objects to
6

this use of funds obtained from her to finance the IrmerChange program. PlaintiffDelp subscribes to the Roman Catholic faith and does not subscribe to the religious beliefs taught in the IrmerChange program. The State has confronted plaintiff Delp with a choice between foregoing telephone conversations with her fiancee, or funding a religious program which she opposes. By so doing, and by using funds obtained from plaintiff Delp to finance the LrtnerChartge program, the State has harmed plaintiffDelp.
14. PlaintiffArdene McKeag, a resident of Iowa, is the mother of an imr~ate incarcerated in Newton. In order to be able to communicate by telephone with her son, plaintiffMcKeag has sent money to the State for deposit into her son’s inmate telephone account, and intends to continue to do so. PlaintiffMcKeag’s son has made and continues to make telephone calls to plaintiff McKeag, and these phone calls have been and continue to be paid for by money sent by plaintiffMcKeag into her son’s telephone account. Profits that the State makes on these phone calls are used to fiand the InnerChange program. PlaintiffMcKeag objects to this use of funds obtained from her to finance the LrmerChange program. PlaintiffMcKeag subscribes to the Protestant Methodist faith and does not agree with religious teachings presented in the hanerChange program. The State has confronted plaintiff McKeag with a choice between foregoing telephone conversations with her son, or funding a religious program that presents religious instruction with which she does not agree. By so doing, and by using funds obtained from plaintiffMcKeag to finance the IrmerChange program, the State has harmed plaintiff McKeag.
15a. Plaintiff Dorothy Redd, a resident of Iowa, is the wife of an inmate in Newton. In order to be able to communicate by telephone with her husband, plaintiff Redd has sent money to

the State for deposit into her husband’s inmate telephone accotmt, and intends to continue to do so. PlainfiffRedd’s husband has made and continues to make telephone calls to plaintiffRedd, and these phone calls have been and continue to be paid for by mo~aey sent by plaintiffRedd into her husband’s telephone account. Profits that the State makes on these phone calls are used to fund the IrmerChange program. PlaintiffRedd objects to this use of funds obtained from her to finance the tnnerChange program. PlaintiffRedd subscribes to the Baptist faith and does not agree with religious teachings presented in the InnerChange program. The State has confronted plainfiffRedd with a choice between foregoing telephone conversations with her husband, or funding a religious program that presents religious instruction with which she does not agree. By so doing, and by using funds obtained from plaintiffRedd to finance the InnerChange program, the State has hamaed plaintiffRedd.
15b. Plaintiff Sandra Sobotka, a resident of Iowa, is the mother of an inmate in Newton. In order to be able to communicate by telephone with her son, plaintiff Sobotka has sent money to the State for deposit into her son’s inmate telephone account, and intends to continue to do so. Plaintiff Sobotka’s son has made and continues to make telephone calls to plaintiff Sobotka, and these phone calls have been and continue to be paid for by money sent by plaintiff Sobotka into her son’s telephone account. Profits that the State makes on these phone calls are used to fund the IomerChange program. Plaintiff Sobotka objects to tiffs use offtmds obtained from her to finance the lnnerChange program. Plaintiff Sobotka subscribes to the Mormon faith and does not agree with religious teachings presented in the IrmerChange program. The State has confronted plaintiff Sobotka with a choice between foregoing telephone conversations with her son, or funding a religious program that presents religious instruction with which she does not agree. By
8

so doing, and by using funds obtained from plaintiff ~obotka to finance the InnerChange program, the State has harmed plaintiff Sobotka.
16. Plaintiffs Delp, McKeag, Redd, and Sobotka further object to the use of any State funds (including funds obtained from inmate telephone calls, funds obtained through the settlement of tobacco litigation, and State generai funds obtained through taxes) to finance or support in any manner the IrmerChange program. Plaintiffs Delp, McKeag, Redd, and Sobotka have been harmed by the use of State funds, and are faced with threatened harm from the further use of State funds, to support the In_nerChange program instead of to serve lawful purposes that benefit Iowa taxpayers and residents. Plaintiffs Delp, McKeag, and Sobotka are all former longtime smokers who have recently quit, and so they would suffer particular harm from the use of funds obtained through the settlement of tobacco litigation for the/_nnerChange program iristead of lawful public health purposes, and they have a particular interest in ensuring that those funds are lawfully used.
17. Defendant Prison Fellowship Ministries is a non-profit corporation that is incorporated in the DisWiet of Columbia and headquartered in Reston, Virginia. Defendant Prison Fellowship proclaims itself to be "focused on one overriding vision: That God’s kingdom will be manifested as the redemptive grace and peace of Jesus Christ are experienced by those impacted by crime." Prison Fellowship’s mission statement is: "To exhort, equip, and assist the Church in its ministry to prisoners, ex-prisoners, victims, and their families, and in its promotion of biblical standards of justice in the criminal justice system." Prison Fellowship’s stated goals include "[m]aking [d]isciples: [e]nabling believers impacted by crime to become consecrated followers of Jesus Christ." Defendant Prison Fellowship operates the InnerChange program.

18. Defendant IrmerChange Freedom Initiative is a non-profit corporation that is incorporated in Virginia, is headquartered in Reston, Virginia, and maintains an office in Newton, Iowa. Defendants Prison Fellowship and IrmerChange have jointly signed contracts with the Iowa Department of Corrections ("DOC") that provide for their operation of the InnerChange program and for the State’s financing of the IrmerChange program. Defendant InnerChange is wholly controlled by defendant Prison Fellowship. Defendant IrmerChange appears to be a pass-through entity that transfers moneys received by it from government bodies to Prison Fellowship. Defendant InnerChange has been funded mainly or entirely by government funds. In its 2000-2001 fiscal year, over 99 percent of InnerChange’s total revenue of $689,877 came from government payments, including $421,907 from the State of Iowa (and the rest from the State of Kansas, where there is also a state prison with an IrmerChange program). In the same risen year, all of IrmerChange’s revenue was transferred to Prison Fellowship. Prison Fellowship then disbursed that money to pay for LrmerChange program expenses and staff salaries.
19, Prison Fellowship and lrmerChange are named as defendants herein on the grounds that their conduct in connection with the l.nnerChange program constitutes state action. Prison Fellowship and InnerChange operate the InnerChange program pursuant to contractual and administrative grants of rights and privileges to them by the State. A substantial portion of the IrmerChange program’s budget is paid for by State fuaads, and the State otherwise significantly aids the program, including by providing physical space and security for it. The State has delegated to Prison Fellowship and IrmerChange the performance of a traditionally public function - supervision and rehabilitation of prison inmates. The InnerChange program is subject
10

to substantial regulation by the DOC. The DOC is entwined in the management and control of the innerChange program, including through significant involvement in the recruitment of participating inmates and in the resolution of numerous issues and disputes that arise with respect to the operation of the program. The contacts between DOC officials and InnerChange officials are so close and frequent that a symbiotic relationship exists between the State and Prison Fellowship/InnerChange. With full knowledge of the nature of the IrmerChange program, the State invited the InnerChange program into Newton. The State is fully responsible for the conduct by Prison Fellowship and IrmerChange described in this complaint, there is a close nexus between the State and that conduct, and the conduct may fairly be treated as that of the State itself.
20. In addition, and in the alternative, Prison Fellowship and IrmerChange are named as defendants herein pursuant to Fed. R. Civ. P. 19. Prison Fellowship and knnerChange have a contractual relationship with the State that plaintiffs allege is unconstitutional. Part of the relief sought by this action is an order requiring Prison Fellowship and InnerChange to return to the State all funds paid to them by the State; therefore, complete relief cannot be accorded among the other parties in the absence of Prison Fellowship and InnerChange. Resolution of this action in the absence of Prison Fellowship and IrmerChange will subject the other parties to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations, for Prison Fellowship and IrmerChange could attempt to protect their contractual relationship with the State through a separate action. The interests of Prison Fellowship and IrmerChange in obtaining funds through their contract with the State and in indoctrinating prison inmates in their religious views would be affected if this action were to proceed without their participation.
11

21. Defendant Terry Mapes is sued herein in his official capacity as Warden of Newton and in his individual capacity. Defendant Mapes is responsible for overseeing operations at Newton. Defendants Mapes has permitted and continues to permit the InnerChange program to be operated at Newton. Defendant Mapes has known, or reasonably should have known, that the State’s sponsorship and financing of the IrmerChange program clearly violated the Establishment Clause and the Iowa Bill of Rights.
22. Defendant Waiter "Kip" Kautzky is sued herein in his individual capacity. Defendant Kautzk-y served as Director of the DOC from 1997 until December 31, 2002. Defendant Kautzky authorized the operation of the InnerChange program at Newton and the State’s financing of the InnerChange program. On behalf of the DOC, defendant Kautzky signed contracts with Prison Fellowship and InnerChange pursuant to which the InnerChange program has been operated and funded. Defendant Kautzky knew, or reasonably should have known, that the State’s sponsorship and financing of the ItmerChange program clearly violated the Establishment Clause and the Iowa Bill of Rights.
23. Defendant John Baldwin is sued herein in his official capacity and in his individual capacity. Defendant Baldwin is Deputy Director of the DOC and served as Acting Director of the DOC from January 1, 2003 until March 2003. As Acting Director of the DOC, Defendant Baldwin continued to permit the IrmerChange program to be operated at Newton and to be partially financed by the State. As Acting Director of the DOC, defendant Baldwin had the authority to terminate the InnerChange program, but he did not do so. Defendant Baldwin has known, or reasonably should have known, that the State’s sponsorship and financing of the IrmerChange program clearly violated the Establishment Clause and the Iowa Bill of Rights.
12

24. Defendants Haywood Belle, Renee Sneitzer, Robyn Mills, Arthur Neu, Suellen Overton~ Walter Reed, Jr., and Donald Tietz are named as defendants herein in theix official capacities as members &the Iowa Board of Corrections. The Board of Corrections authorized the operation of the Inn~rChange program at Newton and the State financing of the InnerChange program. The Board of Corrections has the authority to terminate the InnerChange program, but it has not done so. The members of the Board of Corrections knew, or reasonably should have known, that the State’s sponsorship and financing &the lnnerChange program clearly violated the Establishment Clause and the Iowa Bill of Rights, and so, to the extent that they individually voted to approve the operation and financing of the InnerChange program, they are named as defendants herein in their individual capacities.
25. Defendant Gary Maynard is sued herein in his official capacity as Director of the DOC and in his individual capacity. Defendant Maynard has served as Director of the DOC sines March 2003. The Director of the DOC is the DOC’s chief administrative officer. As Director of the DOC, defendant Maynard has the authority to terminate the IrmerChange program. He has not done so, but has instead continued to permit the InnerChange program to be operated at Newton and to be partially financed by the State. De~’endant Maynard has known or reasonably should have known that the State’s sponsorship and financing of the InnerChange program clearly violate the Establishinent Clause and the Iowa Bill of Rights.
26. The conduct by the State alleged to be unconstitutional in this complaint was authorized by the Board of Corrections and by defendants Kautzky, Baldwin, Maynard, and Mapes.
13

IV. General Allegations A. The Pervasively Religious Nature of the InnerChange Program 27. Approximately 200 Iowa prison irmaates participate in the IrmerChange program.
The participating inmates are housed in a separate u.nit in Newton. InnerChange runs virtually every aspect of this u.nit except for security. The IunerChange program is pervasively sectarian. During nearly all their waking hours, participants are subjected to intensive, evangelical, Biblically-based instruction from a Christian fundamentalist standpoint. Each inmate’s day starts with morning prayer. Most of an inmate’s day consists of taking part in InnerChange’s evangelical, fundamentalist, Biblically-based classes and programming. The walls in the Newton unit that houses participating inmates are lined with scripture. Program staff pray with participating inmates. Chapel service is luandatory on Sundays.
28. InnerChange’s own promotional and program materials include statements that describe the program as follows:
¯ (a) The LrmerChange program "is a revolutionary, Christ-centered, values-based pre-release prison program supporting prison irmaates through their spiritual and moral transformation."
¯ (b) "IT]he application ofbiblical principles is not an agenda item - it is the agenda,"
¯ (c) "All programming - all day, every day- is Christ-centered." ¯ (d) The program is a "24 hour per day Christ-centered Bible-based program." ¯ (e) The program is "explicitly Christ-centered." - (f) The InnerChartge program itt Iowa is "one of the prisons Prison Fellowship
14

actually runs as a Christian institution." ¯ (g) "Utilizing a totally Christ-centered, biblically based curriculum, IFI staff and
a great number of Christian volunteers immerse member inmates in the transformational love of Jesus Christ."
¯ (h) "The IFI community serves as the crucible for learning and testing biblical principles."
¯ (i) "To facilitate this, biblical principles and core values are prolrfinently displayed throughout the facility and promoted through memorization."
¯ (j) "All IFI courses are Bible-based." ¯ 0c) The program "require[s] regular participation in Bible studies and other religious programming." ¯ (1) "Biblical principles are integrated into the entire course curriculum of IFI, rather than being compartmentalized in specific classes." ¯ (m) "Prisoners are taught biblical principles in the context of teachable moments." ¯ (n) The program "is anchored in biblical teaching that underscores.., the reality of a new life through Christ." ¯ (o) "Transformation" is the "major purpose of the program," and "lilt is brought about by depending on Christ and living according to the Bible." ¯ (p) "The purpose of IFI is to have a prison community where members change ... through a spiritual new birth through Christ." - (q) "Inmates learn how God can heal them permanently, if they turn from their
15

sinful past, are willing to see the world through God’s eyes, and surrender themselves to God’s will."
¯ (r) In the first phase of the program, "[W]e are mainly concerned about your inside transformation - your relationship with GodW...e. want you to learn what it means to have a personal relationship with Christ A...n. d we want you to learn how to apply the Bible to your life."
¯ (s) "The approach of the InnerChange Freedom Initiative coneerrting serving those with any addictive behavior, including substance abuse addictions, shall be based on a faith-based Christiata discipleship model; i.e., only Jesus Christ is the cure for addictions."
¯ (t) "[T]hrough biblical la’ansformation, the deleterious effects of substance abuse can be overcome."
¯ (u) The program is "training up [inmates as] future spiritual leaders that will be about the business of spreading the Good News of Jesus Christ." 29. According to InnerChange’s promotional and program materials, the program includes the following courses and components:
¯ (a) MasterLife. "This course is a 26-week inductive bible study authored by the Southern Baptist Convention." it is "discipleship training.., a sequential, developmental, group disciplinfiag process which enables the acknowledgment of Christ as Master."
¯ (b) Survival Kit. This course "[h]elps new Christians chart their course for survival in the Christian walk." The goals of this course include (i) "[1learning about
16

allow~g Cbxist to indwell you;" (ii) "[qeaching about how we become the body of Christ;" (iii) "[w]alking you[r] new walk in Christ;" and (iv) "[h]ow to reach others through Prayer and Witnessing."
¯ (c) Parenting Seminar. "This course is a biblical-based parenting workshop." The three goals of the course are (i) "[t]o know that God has established the family and the father to be the head of the family;" (ii) "[t]o learn how to teach Godliness to prisoners’ children;" and (iii) "[t]o model and demonstrate godliness."
¯ (d) Mentoring. The goals of this program component include: (i) to "It]each the biblical principles for close friendships;" (ii) to "[d]evelop a long-term relationship which centers first on Christ;" and (iii) to "[d]evelop a long-term relationship built on biblical principles of prayer, biblical foundations for living, and problem-resolution."
¯ (e) Experiencing God. This course "seeks to assist members in identifying ways in which God is active in their everyday lives."
¯ (f) Heart of the Problem. This course "focuses on God’s counsel in truth in contrast to the ’world’s counsel and reasoning.’"
¯ (g) Brothers Keepers. "This course is a weekly group meeting where members are taught biblical principles for loving, Christ-centered peer relationships."
¯ (h) Marriage and Family. "This interactive course teaches biblical principles using proven techniques to help the inmate and family members restore and rebuild their family relationships."
¯ (i) Sycamore Tree. This program component provides "[a]n opportunity for the church to help offenders, victims, and coro_mtmity members meet in the presence of
17

Jesus." Its goals include "experiene[ing] Biblical confession, repentance, forgiveness, and reconciliation related to specific criminal acts" and "experienc[ing] salvation or Christian growth." B. The State’s Funding of Religious Instruction by InnerChange 30. The State entered into a contract with Prison Fellowship and IunerChange in 1999. Defendant Kautzlcy signed this contract on behalf of the State. The initial contract term was from September 1, 1999 through August 31, 2000. The contract was renewed every year, first for a term from September 1, 2000 through June 30, 2001, then for a term from July 1, 2001 through June 30, 2002, and most recently for a term from July 1, 2002 through June 30, 2003. The most recent cor~tract renewal gives the State the option to farther renew the contract for two one-year periods, the second of which would end on June 30, 2005. 31. The contract provides for state financing and support of hanerChange. Pursuant to the contract, the State has expended $282,000 on the LrmerChange program in the 1999-2000 fiscal year, $373,000 in the 2000-2001 fiscal year, and $325,025 in the 2001-2002 fiscal year. Of these mnounts, $229,000 in cash was paid directly to IrmerChange for program costs during the 1999-2000 contract term, $191,000 in cash was paid to InnerChange for program costs during the 2000-2001 term, and between $191,000 and $230,000 in cash was paid to IrmerChange for program costs during the 2001-2002 term. The State has been paying approximately 40 to 50 percent of IrmerChange’s program costs. 32. The balance of the money provided by the State to support IrmerChange has been spent on in-kind aid. The State leased and eventually purchased a modular building to provide office and program space for the irmerChange program. The State paid the full cost of leasing
18

and purchasing this building, including a $fi9,000 installation fee in 1999, approximately $8,300 per month in lease payments from 1999 until early 2002, and a $61,576 purchase payment in 2002. The office and program space provided by the State for hanerChange includes airconditioned classrooms, offices for LuncrChange staff, a conference room/’or the staff, staff restroorn facilities, library facilities, and recreational m-eas. The State also has been providing InnerChange with beds for the participating inmates, security staff for the Newton unit housing the program, access to chaplains and correctional counselors, and transportation/’or participating inmates.
33. The State’s payments to InnerChange have been made out o/’the DOC’s Inmate Telephone Rebate Fund. The DOC charges inmates rates that are substantially above market rates to make telephone calls to families, fi-iends, and attorneys. Phone service in Iowa correctional facilities is provided and operated by a state agency called the Iowa Communications Network ("ICN"). The charges imposed on inmates ~or telephone calls are far greater than the costs incurred by the ICN and the DOC in connection with the calls. The State thus makes substantial profits on in.mate telephone calls. The State places these profits in the Inmate Telephone Rebate Fund. By law, the DOC is required to use all fimds deposited in the Inmate Telephone Rebate Fund ’%r the benefit of inmates." However, since the IrmerChange program began, a substantial portion of the ~unds placed in the Inmate Telephone Rebate Fund has been spent on the I_unerChange program.
34a. In other words, the State has been fimding hanerChange out o£profits that the State makes on inmate telephone calls, including calls made to plaintiffs and paid for out o~" funds deposited by plaintiffs into inmate telephone accounts. The State has thereby been expropriating
19

funds from family members and friends of inmates (including plaintiffs Delp, McKeag, Redd, and Sobotka), attorneys of inmates and organizations providing attorneys for inmates (including plaintiff Americans United), and inmates themselves, to finance InnerChange. The family members and friends of inmates, attorneys of inmates, and inmates themselves are presented by the State with a choice of foregoing telephone conversations with their relatives or other persons who are important to them, or funding religious instruction with which they do not agree.
34b. The State significantly raised inmate telephone rates after the IrmerChange program commenced, in part to pay for the cost of the InnerChange program. In addition, in order to finance the I.unerChange program, the State terminated certain expenditures from the Inmate Telephone Rebate Fund that had provided general benefits to inmates without regard to religion. Thus, as a result of the InnerChange program, plaintiffs Delp, McKeag, Redd, and Sobotka pay for higher telephone rates for calls from their incarcerated relatives while those relatives receive fewer benefits from the Inmate Telephone Rebate Fund.
35a. For the 2003 fiscal year, the State has allocated $229,250 from the Inmate Telephone Rebate Fund for the IrmerChange program. Of this amount, $191,625 is being paid to ImaerChange for program costs. The rest is being used by the State to provide non-cash services that support the program.
35b. For the 2003 fiscal year, $172,591 has been allocated by the State from the Healthy Iowans Tobacco Trust Fund for the Ln_nerChange program. The funds in the Tobacco Trust Fund were obtained by the State through the settlement of litigation between the State and tobacco companies arising out of conduct by the tobacco companies harmful to Iowa smokers and others. Under Iowa Code § 12.65, "[m]oneys deposited in the healthy Iowans tobacco trust fund shall be
20

used only.., for purposes related to health care, substance abuse treatment and enforcement, tobacco use prevention and control, and other purposes relating to the needs of children, adults and families in the state." However, the State is using the Tobacco Trust Fund money to expand the IrmerChange program to the Correctional Release Center ("CRC"), a minimum security facility on the Newton complex that houses Lumates who are permitted to work at local jobs outside the facility during the day but must return to the facility for the fright. One of the three living units of the CRC is being turned over to the IrmerChange program. An additional $310,000 has been allocated for the InnerChange program by the State from the Tobacco Trust Fund for the 2004 fiscal year; this money may in part be used to expand the IrmerChange program to an Iowa correctional facility for women at Mitchellville.
35c. The State has also been using State general funds, obtained by the State through taxes on Iowa residents (including plalntiffDelp and members of plaintiff Amerieaus United), to support the LunerChange program. State general funds have been used to pay for the cost of housing imr~ates enrolled in IrmerChange, utility and maintenance costs for InnerChange program and office space, and salary costs of DOC employees who have duties relating to IrmerChange. Some of the expenditures of State general funds that support the LrmerChange program - such as payments for telephone calls relating to IrmerChange and meals for meetings relating to InuerChange - would not have been incurred at all if there was no IrmerChange program in Iowa. I_u addition, the State has used State general funds to pay for lease payments and a lease buyout for the modular building that is utilized for ImaerChange office and program space. If the foregoing expenditures of State general ftmds to support IrmerChange were not being made, either the funds would be used in a constitutional manner benefitting Iowa taxpayers and
21

residents (including plaintiffs), or the amount of taxes paid by Iowa taxpayers (including plaintiff Delp and members of plalntiffAmerieans United) would be lower.
36. The defendants have publicly taken the position that the State funds paid to ImaerChange for programming costs are expended only for "non-sectarian" portions of the program. In fact, however, the State’s payments to InnerChange are being used to actually pay for religious instruction, and to finance and support a pervasively religious program. According to IrmerChange’s own promotional materials, "Biblical principles are integrated into the entire course curriculum of~I, rather than being compartmentalized in specific classes," and "[a]ll programming - all day, every day- is Christ-centered." it is therefore impossible to separate the sectarian aspects of the InnerChange program from the non-sectarian. The IrmerChange program is wholly permeated by religion and is thus pervasively sectarian.
37. The manner in which InnerChange purports to distinguish sectarian expenses and non-sectarian expenses confirms that State funds are in fact being used by InnerChange to pay for and to support religious instruction. ImaerChange attempts to allocate to each of its courses and program components a percentage that supposedly represents a ’Non-sectarian" portion. However, since "all programming - all day, every day - is Christ-centered" and "Biblical principles are integrated into the entire course curriculum," these allocations are without any validity. And courses that are treated as primarily non-sectarian in IrmerChange’s percentage allocations are described in primarily religious terms in InnerChange’s program and promotional materials. Indeed, hmerChange treats as 100 percent non-sectarian an "Addiction Recovery" class that relies heavily on the Alcoholics Anonymous program, even though Alcoholics Anonymous is a religious program (as many federal court decisions have expressly held).
22

38. Likewise, InnerChange assigns each of its staff members a percentage that supposedly represents the non-sectarian portion of their work, and claims to bill the State only for that portion of each staffmember’s salary. For example, IrmerChange claims that staffmembers called "Biblical Counselors" devote 16 percent of their time to non-sectarian work and 84 percent to sectarian work. Iv_nerChange further claims that 77 percent of the work done by their Office Administrator should be treated as non-sectarian, even though the Office Administrator’s work consists of support tasks for a pervasively sectarian program. And InnerChange bills the State for items other than salaries, such as "advertising," "materials and supplies," "program and training materials," "postage and freight," "printing," "telephone," and "meals for staff and volunteers," without even attempting to divide these items into sectarian and non-sectarian components. Since these items support pervasively religious programming, they cannot properly be treated as non-sectarian, yet IrmerChange so treats them anyway.
39. In addition, the State has not created any safeguards designed to prevent the use of money paid to InnerChange for religious instruction. The State does not monitor the irmerChange program to try to keep state money from being used for religious programming.
40. Moreover, State funds paid to InnerClaange supplant and do not supplement private funds. In April 1997, before establishing the IrmerChange program in Iowa, Prison Fellowship established an IrmerChange program in a prison in Texas, which is still in place. State funds have not been used in Texas to pay for any IrmerChange program costs there. The State of Iowa is thus using State funds to finance a religious program that could be successfully financed wholly with private dollars.
41. Furthermore, the State is delivering government funds directly to ImaerChange.
23

InnerChange then turns the money over to Prison Fellowship, which disburses the money to pay for IxmerChange program costs and salaries of IrmerChange staff. State cash is therefore being delivered directly into the coffers of religious organizations.
42. Finally, the State is providing InnerChange with substantial in-kind aid, such as physical program and once space and facilities, which is not restricted to secular use but is used to support the entirety of InnerChange’s pervasively religious programming.
C. The InnerChange Program’s Religious Discrimination Among Inmates 43. IrmerChange claims that the program is open to inmates of all faiths, in fact, however, the InnerChange program discriminates among inmates based on religion and is available only to inmates who subscribe to or are willing to actively cooperate in being converted to a fundamentalist, evangelical, form of Protestant Christianity. 44. IrmerChange screens and selects its participating inmates. InnerChange requires participating inmates to %e willing to productively participate in a program that is explicitly Christian in both content and delivery." Non-Christian inmates are eligible only if they are "willing to actively participate in a Christ-centered, biblically based program." All inmates who wish to participate must sign an agreement stating that they understand that "the program contains religious content and is based upon Christian values and principles." InnerChange’s criteria for selecting inmates include "demonstrated commitment to participate in the IFI program" and "sincere motivation to cooperate." 45. Recruitment materials given to prospective participants make clear that there is a place in the InnerChange program only for those who are willing to embrace fundamentalist Christianity. The statements made in these materials to inmates who are considering the program
24

include:

¯ (a) "You need to understand that this is a Christian program."

¯ (b) "The program confronts prisoners with the choice of embracing new life in

Christ and personal transformation, or remaining in the stranglehold of crime and

despair."

¯ (c) "IFI is a 24-hour-a-day program that promotes personal transformation of

prisoners through the power of the Gospel." ¯ (d) "IT]he program is based on the Gospel of Jesus Christ."

¯ (e) "An overall goal of Phase 1 [of the program] is for you to begin life

transformation through the Gospel of Jesus Christ."

¯ (f) "True transformation begins with salvation, also called conversion."

¯ (g) "Conversion is when you turn away from what is negative and mrn to

Ckrist." ¯ (h) "Then you try to live your life by His example and instructions fotmd in the

Bible."

¯ (i) "As you are transformed into the image of Christ, you have more and more

integrity."

¯ (i) "Above all else," through the program, "you may discover the transforming

love of Jesus Christ."

¯ (k) The program offers "a different group of people to hang with. Cbyistians

with positive values." ¯ (1) "’All ~I graduates are expected to have ... a Christian mentor.., and a

25

home church when released." 46. Selection for the LrmerChange program involves a six-week introduction program followed by a one-month orientation program, both of which are conducted by Prison Fellowship. As part of this process~ prospective participants must complete a "Survey of Religious Beliefs and Practices," where they are asked to indicate their level of agreement or disagreement with various religion-related statements. One subsection in this survey is a "Religious Attitude Inventory," where the prospective participants must agree or disagree with religion-related statements such as "Christ died for sin.acts." Another subsection is a "Scriptural Literalism Scale," where agreement or disagreement must be expressed with statements such as "[t]he precise words spoken by God may be found in the scriptures." IrmerChange selects participants for its full program by evaluating the performance of prospective participants in the introduction and orientation programs and examining their "degree of spiritual walk." The DOC does not select InnerChange participants; it only has veto power over IrmerChange’s selections. 47. Once inmates are actually admitted into the InnerChange program, they continue to be judged through religious criteria. They receive monthly evaluations based on various criteria on a scale of 1 to 5. Many of these criteria are explicitly religious, including:
¯ (a) "As faith proceeds joy, demonstrates a belief in Jesus Christ." ¯ (b) "Puts God first in his life, ’serves no idol’ and is quick to praise God." ¯ (c) "Prays in the Spirit." ¯ (d) "Has a vision/understanding of the Father and is enlightened spiritually as demonstrated by his personal attitudes." ¯ (e) "Conquers trials and tribulations through spending time in His Word."
26

¯ (f) "Maintains high spiritual morale without complaining and criticizing." ¯ (g) "Acts as a witness of God’s grace to others." Obtaining an average score of less than 2 on an evaluation is grounds for removal from the LrmerChange program. Obtaining an average score of 3 in each of eight behavior areas, some of which are dominated by religious criteria, is necessary to advance from one phase of the program to the next phase. 48. Any non-Protestant inmates who decide to and are permitted to participate in the InnerChange program are given little opportunity to continue to adhere to their faith. Program participants who are Catholic, Mnslim, or of other non-Protestant faiths are permitted to attend religious services other than the Protestant ones provided by the program only if the time of the services does not conflict with program activities. Special requests made by non-Protestant program partieipauts to accommodate their religious practices are not granted if they would keep an inmate from fully taking part in the program or from meeting prograxn requirements. Faiths other than Protestant Christianity are denigrated during the program. As stated in an InnerChange brochure, "It’s the earnest desire of/FI that residents convert to Christ and follow His ways that lead to transformation." 49. Moreover, the State’s sponsorship of the IrmerChange program creates incentives for inmates to undertake religious indoctrination i.u the specific tenets of the program. The State does not offer any program similar to InnerChange for inmates who do not subscribe to and are not willhag to be converted to the religious tenets taught in the hmerChange program. And inmates in the IrmerChange program receive numerous privileges that are not available to the other inmates in Newton. Unlike other Newton inmates, who are housed in what is referred to as
27

a "lock-up unit," participants in the InnerChange program are housed in what is referred to as an "honor unit." Participants in the InnerChange program are given keys to their cell doors. The other inmates in Newton are not, and the locks to their cell doors are conlxolled solely by correctional officers. Participants in the InnerChange program are permitted to leave their cells at night, while other Newton inmates are locked in their cells for the night. Participants in the hanerChange program have access to bathrooms stalls that are divided by partitions and have doors with sliding locks. The other inmates in Newton have access only to toilet stalls that are located in the middle of their cells, with no privacy. Participants in the InnerChange program are more likely than other inmates in Newton to be housed two to a cell instead of three to a cell. Participants in InnerChange live in cells with wooden doors; other inmates in Newton live in cells with steel doors.
50a. Unit E of Newton, which is the "honor unit" that now houses InnerChange participants, was formerly reserved for inmates who established a record of good behavior while incarcerated and did not represent major security rigks. In order to make room for the InnerChange program, the State expelled the inmates who were living in Unit E from that unit.
50b. Similarly, the most desirable of the three living units in the CRC is being turned over to the InnerChange program. That unit has air conditioning and carpeting, while the other two units do not. The entirety of that unit is being handed over to InnerChange to house InnerChange participants, and all inmates who do not participate in InnerChange are being expelled from that unit.
50c. Moreover, the CRC is the only facility in the Iowa correctional system that is purely a minimum security facility, and placement in the CRC is therefore highly desirable to inmates in
28

the Iowa correctional system, lxn-nates who had been approved for transfers into the CRC have been put on a waiting list instead of being moved into the CRC, while the DOC is holding about sixty empty living places in the CRC in reserve for kn_nerChange participants. ImaerChange participants are thus being given priority for spaces in the CRC over inmates who do not participate in InnerChange.
51. Participants in InnerChange also have numerous other privileges that are denied to other iranates in Newton, including the following:
(a) the right to have visits on six days of the week, instead of four days as is the case for other inmates;
(b) religious worship services with members of their family; (cl) free telephone calls to their farnily; (c2) free emergency telephone calls; (d) the right to make videos of themselves and send them home to their family; (e) preferences for better jobs at Newton; (f) the only certified drug treatment class available at Newton; (g) payment for the taking of certified rehabilitation courses; Ca) payment of an allowance in exchange for talcing college classes in theological studies; (i) different discipline procedures that tend to result in less severe discipline for violations of prison regulations; (jl) access to computers, e-mail, and the intemet; (j2) the right to e-mail family members;
29

(j3) computer classes, which are free; (k) free Bibles and religious articles; (1) flee t-shirts with InnerChange logos, while other inmates are prohibited from wearing clothing with logos; (m) free art supplies; (n) the fight to have personal contact after release with counselors and mentors they had while incarcerated; (o) assistance with housing and jobs upon release; (p) access to a large projection-screen television; (q) access to a music morn; (r) access to many musical instruments not available to other inmates, who are allowed to have only harmonicas and tmamplified guitars; (s) free three-ring binders, while other inmates are not even allowed to possess three-ring binders; (t) access, during celebrations, to free food prepared by outside vendors; (u) for hmerChange participants newly transferred to Newton, more favorable security classifications than other inmates newly transferred to Newton; (v) for some irmerChange graduates, the right to stay in Unit E after graduation; (w) for IrmerChange graduates released on parole or probation, but no other parolees or probationers, the right to re-enter Newton; (x) for releasea IimerChange graduates who are no longer on parole or probation, greater rights to re-enter Newton than other persons released from prison who are no
30

longer on parole or probation; (y) for IrmerChange inmates placed at the CRC, greater rights to re-enter the main
Newton facility than other inmates at the CRC; (z) greater opporttmifies to participate in softball games and softball practice; (aa) the right to purchase canteen goods and place them itato a community box
from which other IrmerChange inmates can then take the goods, while inmates not enrolled ~ IrmerChmage are prohibited from maintaining such a community box or transferring money or canteen goods to their fellow inmates in any manner; and
(bb) the right to answer phones in Newton at certain jobs, while other inmates are not permitted to answer phones in Newton under any circumstances. 52. Inmates in Newton and other Iowa correctional facilities must choose between foregoing all of the above-described privileges or submitting to intensive indoctrination in religious tenets to which they do not subscribe. 53. Furthermore, recommendations from InnerChange staffmembers can favorably influence parole decisions. To receive such recommendations from IrmerChange staff, inmates must successfully proceed through the IrmerChange program. Moreover, some inmates must complete certain certified rehabilitation programs in order to become eligible for parole. Some of these programs are available only at certain Iowa correctional facilities, and some of these programs have waiting lists. An inmate who completes the InnerChange program receives credit for completing all of these certified rehabilitation programs except one (sex offer~der treatment). Accordingly, many inmates can complete their required rehabilitation credits more quickly by enrolling in InnerChange than by ertrolling in individual non-LrmerChange certified rehabilitation
31

programs. The State has thus created a system under which inmates can both increase their
el~ances of being paroled and move up the time at which they become eligible for parole by
submitting to and accepting intensive indoctrination in fundamentalist Christian religious
teachings.
D. The innerChange Program’s Religious Discrimination in Employment
54. InnerChange and Prison Fellowship have publiely-armouneed policies of employing
only Christians as staff members and of requiring all volunteers to be Christian. ImaerChange’s
website states that ItmerChange "requires that all staff and volunteers are Christians who are
living vital, empowered lives." The website further states, "IFI staff and voluntec-ws seek to
model Christ through being controlled by the fruit of the Spirit." Similar language appears in
paper LrmerChange promotional and informational materials.
55. IrmerChange staff members and volunteers must subscribe to and abide by Prison
Fellowship’s Statement of Faith, which reads:
We believe in one God, Creator and Lord of the Universe, the co-eternal Trinity;, Father, Son, and Holy Spirit.
We believe that Jesus Christ, God’s Son, was conceived by the Holy Spirit, born of the Virgin Mary, lived a sinless life, died a substitutionary atoning death on the cross, rose bodily from the dead and ascended to heaven where, as mtly God and truly man, He is the only mediator between God and man. We believe that the Bible is God’s authoritative and inspired Word. It is without error in all its teachings, including creation, history, its own origins, and salvation. Cbxistians must submit to its divine authority, both individually and corporately, in all matters of belief and conduct, which is demonstrated by tree righteous living.
We believe that all people are lost sinners and cannot see the Kingdom of God except through the new birth. Justification is by grace through faith in Christ alone.
We believe in one holy, universal, and apostolic Church. Its calling is to worship and
32

witness concerning its Head, Jesus Christ, preaching the Gospel among all nations and demonstrating its commitment by compassionate service to the needs of human beings and promoting righteousness and justice. We believe in the necessity of the work of the Holy Spirit for the individual’s new birth and growth to maturity, and for the Church’s constant renewal in truth, wisdom, faith, holiness, love, power, and mission. We believe that Jesus Christ will personally and visibly return in glory to raise the dead and bring salvation and judgment to completion. God will fully manifest His kingdom when He establishes a new heaven and new earth, in which He will be glorified forever and exclude all evil, suffering, and death. 56. State of Iowa funds are used to pay a portion of the salary of each IrmerChange staff member. The State is thereby financing religious discrimination in employment, including with funds expropriated from plaintiffs. Moreover, InnerChange’s contract with the State specifically provides that InnerChange may base employment decisions upon religious criteria, notwithstanding any federal, state, or local laws, rules, ordinances, regulations, or orders to the contrary. The State is thus significantly aiding invidious religious discrimination in employment by Prison Fellowship and IrmerChange, and that discrimination is fairly attributable to the State. E. The State’s Baekroom Agreement With and Cooperation With IunerChange 57. The State agreed to allow Prison Fellowship to start the IanerChange program in Iowa without first making similar opporttmities available to other groups. In early 1998 and mid1998, Prison Fellowship officials had discussions with defendant Kautzky and other State officials about bringirtg the InnerChauge program to Iowa. In mid-1998, defendant Kautzky and other State officials agreed to allow an LrmerClaange program to be started in Iowa. After this agreement was privately reached, the State issued a public Request for Proposal that was tailored for the IrmerChange program.
33

58. This Request for Proposal, issued in August 1998, was entitled "Request for Proposal for Non-Compensated Values Based Pre-Release Program." Though nominally inviting open bidding on a contract to provide "values based pre-release" programming, the Request for Proposal was actually designed to result in Prison Fellowship being awarded the contract. The Request for Proposal falsely stated that it sought only "non-compensated services" and that "[t]here will be no state monies or compensation, in any form, given to the Contractor for the programming services provided." In fact, the State agreed to pay a substantial portion of the I_rmerChange program’s costs. Understandably, only Prison Fellowship responded to the Request for Proposal.
59. The manner in which the State agreed to contract with Prison Fellowship reflects State endorsement of and preference for religion in general and the specific religious tenets of the InnerChange program in particular. The DOC does not make available to inmates any "values based pre-release" programming from a secular perspective or from the perspectives of faiths other than InnerChange’s fundamentalist, evangelical Christian belief system.
60. In addition, state officials closely cooperate with In.nerChange officials with respect to administration of the InnerChange program. State officials and employees have regular and close contact with InnerChange officials and employees with respect to numerous issues that arise out of the operation of the program. State officials also provide considerable assistance to innerChange with respect to recruitment of inmates for the program. The State’s involvement with the I_rmerChange program has thereby resulted in excessive government entanglement with religion.
34

V. Claims for Relief Count One
(Violation of the Establishment Clause of the U.S. Constitution) 61. Paragraphs 1 through 60 above are incorporated herein as if fully set forth herein. 62. The Establishment Clause of the First Amendment of the Constitution of the United States provides, "Congress shall make no law respecting an establishment of religion." The Establishment Clause applies with full force and effect to the acts of state and local government entities and officials pursuant to the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. 63. By sponsoring and financing the InnerChange program, the defendants have violated and continue to violate the Establishraent Clause in many ways, including as described below. 64. The State’s sponsorship and financing of the IrmerChange program has the primary effect of advancing religion. It results in govermnental indoctrination. State funds are being used to finance and support a pervasively religious program, and those funds are put to specifically religious use. Government cash aid is being delivered directly into the coffers of religious organizations. This aid supplants and does not supplement private funds. No adequate safeguards exist to prevent the aid from being used for religious instruction. 65. The State’s sponsorship and financing of InnerChange gives inmates incentives to subject themselves to religious indoctrination, and coerces them to do so. Inmates must choose between submitting to indoctrination in religious tenets with which they do not agree, or foregoing numerous privileges offered to participants in the irmerChange program. Imnates have in fact been deprived of privileges that had previously been given to them (such as residence in
35

Newton’s "honor unit") because they failed to submit to religious indoctrination in the tenets of the InnerChange program. The LunerChange program defines the recipients of government benefits by reference to religion. Only those inmates who subscribe to evangelical, fundamentalist Christian beliefs or are willing to be converted to those beliefs can participate in the program.
66. The State’s sponsorship and financing of the InnerChange program conveys to reasonable observers a message of endorsement of religion in general and of the specific form of Christianity taught by the InnerChange program in particular. The State’s sponsorship and financing of the IrmerChange program constitutes a governmental preference for Christianity in general and for the specific form of Christianity taught in the IrmerChange program in particular.
67. The State is financing invidious discrimination in employment based on religion by Prison Fellowship and hanerChange. Prison Fellowship and InnerChange require all of their staff members to be Christians and to subscribe to and abide by Prison Fellowship’s Statement of Faith, and the State is partly paying the salaries of InnerChange staff.
68. Other than continuing to take responsibility for security, the State is allowing InuerChange to rtm the section of Newton in which participating inmates are housed. The State is thereby delegating government power to a religious organization.
69. State officials closely cooperate with IrmerChange officials with respect to administration of the ]nnerChange program. The InnerChange program has thereby resulted in excessive government entanglement with religion.
70. By violating the Establishment Clause as set forth above, the defendants have, under color of statute, ordinance, regulation, custom, and/or usage, deprived plaintiffs of fights secured
36

by the First and Fourteenth Amendments of the U.S. Constitution, entitling plaintiffs to a remedy under 42 U.S.C. § 1983.
71. By virtue of the defendants’ violations of the Establishment Clause, plaintiffs are entitled to injunctive relief, declaratory relief, nominal damages, recoupment, and restitution.
Count Two (Violation of Section 3 of the Iowa Bill of Rights) 72. Paragraphs 1 through 71 above are incorporated herein as if fully set forth herein. 73. Article I, Section 3, of the Iowa Constitution provides, "The General Assembly shall make no law respecting an establishment of religion, or prohibiting the fi:ee exercise thereof; nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister, or ministry." 74. By expropriating funds fi:om plaintiffs and using those funds to pay for the support of a ministry, and for the reasons given in Count One, defendants have violated Article I, Section 3 of the Iowa Constitution. 75. By virtue of defendants’ violations of Article I, Section 3 of the Iowa Constitution, plaintiffs are entitled to nominal damages and declaratory relief against all defendants, and injunctive relief and recoupment against defendants Prison Fellowship and hmerChange.
37

VI. Prayer for Relief 76. Paragraphs 1 through 75 above are incorporated herein as if fully set forth herein. injunction 77. The plaintiffs have no adequate remedy at law, WHEREFORE, plaintiffs
respectfully request a permanent injunction prohibiting continued operation of the InnerChange program in Newton or in arty other Iowa correctional facility. In the alternative, and/or in addition, plaintiffs respectfully request a permanent injtmetion:
(a) prohibiting the payment of any State funds to Prison Fellowship or IrmerChange and the use of any State funds or State in-kind aid to otherwise support the IrmerChange program in any manner (and, alternatively, prohi,bifing the use of any State funds to pay any portion of the salaries of Prison Fellowship or IrmerChange employees so long as Prison Fellowship or IrmerChange continue to use religious criteria to select employees); and
(b) requiting, if continued operation of the InrterChange program is not fully enjoined, that benefits given to ilamates participating in the lnnerChange program be made available to non-participating irtmates and that "values based pre-release programming" from the standpoints of ail faiths and from a secular standpoint be made available to inmates.
Declaratory Judgment 78. An actual controversy exists between the parties as to whether the operation of the IrmerChange program, and the State’s financing and sponsorship of the program, violate the Establishment Clause of the U.S. Constitution and the Bill of Rights of the Iowa Constitution.
38

WHEREFORE, plaintiffs respectfully request a declaratory judgment declaring that:

(a) defendants Mapes, Kautzky, Baldwin, Maynard, Belle, Sneitzer, Mills, Neu,

Overton, Reed, and Tietz violated the U.S. and Iowa Constitutions by authorizing the

operation of the InnerChange program in Newton, the State’s financing and sponsorship

of the InnerChange program, and the other conduct described in this complaint; and

(b) defendauts Prison Fellowship and innerChange violated the U.S. and Iowa

Constitutions by discriminating against inmates based on their religious beliefs in the

offering and provision of’’values based pre-release programming," and by discriminating

in employment based on religion with respect to positions partly financed with

government funds.

Nominal Damages

79. Plaintiffs’ rights under the Establishment Clause of the U.S. Constitution and the Bill

of Rights of the Iowa Constitution were violated by defendants. WHEREFORE, plaintiffs

respectfully request nominal damages against: (a) defendants Mapes, Kautzky, Baldwin, and Maynard, for authorizing the

operation of the InnerChange program in Newton, the State’s financing and sponsorship

of the InnerChange program, and the other conduct described in this complaint; (b) those defendant members of the Board of Corrections who individually voted

to authorize the operation of the InnerChange program in Newton and the State’s financing and sponsorship of the IrmerChange program, for so doing; and

(c) defendants Prison Fellowship and InnerChange, for utilizing government funds

to support discrimination based on religion in the provision of government services and in

39

employment. Reeoupment/Restitution
80. Defendants Prison Fellowship and LnnerChange knew or reasonably should have knowa that the State’s payments to them for IrmerChange program costs were unconstitational, and therefore they could not have reasonably relied on the payments for their expenses. Return to the State of the funds paid by the State to IrmerChange would protect and advance the constitutional rights raised by this action by deterring Prison Fellowship, IrmerChange, and other private organizations from accepting government funds in the furore where, as here, such payments of funds are clearly unconstitutional. WHEREFORE, plaintiffs respectfully request an order requiring Prison Fellowship a~d IrmerChange to return to the State all payments ever made to them by the State, and requiring that those monies be restored to the special state funds (such as the Inmate Telephone Rebate t~und) from which they were taken. Plaintiffs further request an order requiring that to the extent that rates for inmate telephone calls were increased in order to finance the IrmerChange program, each plaintiffbe given apro rata refund out of the Inmate Telephone Rebate Fund of the amount provided by the plaintiff for telephone calls that is attributable to said increase.
40

Other Relef 81. Plaintiffs further respectfully request an order awarding plaintiffs the costs of this action, includiug attorneys’ fees, pursuant to 42 U.S.C. § ] 988. 82. Plaintiffs furtlaer respectfully request that the Court award any other relief that the Court deems just and proper.

Respectfully submitted,
By: -e~d~2 ~l/"- . ~’c"L4_ ~I .... De~ Stow~s, Esq.
Dean Stowers, Esq. Rosenberg, Stowers & Morse 1010 Insurance Exchange Building 505 Fifth Avenue Des Moines, Iowa 50309 Phone: (515) 243-7600 Fax: (515) 243-0583 E-mail: deanstowers@aoL com Cooperating Attorneys, Americans United
for Separation of Church and State

Date:

By’~~." ~ "AJex J. Luchemtser, Esq.
Ayesha N. Khan, Esq., Legal Director* (appearing pro hac vice) Alex J. Luehenitser, Esq., Litigation Counsel (appearingpvo hac vice) Americans United for Separation of Church and State 518 C Street NE Washington, DC 20002 Phone: (202) 466-3234 Fax: (202) 466-2587 E-mail: khan@au.org / luchenitser@au.org *lead counsel
Counsel for plaintiffs

41

 
 IN THE UNITED STATES DITS IRTCCOURT FOR THE SOUTHERN DISTRICT OF IOWA
CENT~L DWISION

JE~Y D. ASHBURN, LOUIS BOLDON, BRYAN CHANDLER, ROBERT ENGLE,

)

No. 4:02-cv-90447

)

No. 4:03-cv-90101

~ ~~ SHELTON),
~d VALENTNO WHITER;
Plmmiffs,

))

~L~adcase ~/~

)

)

Hon. R~~~

)

TERRY MAPES, in his official capacity as Warden of the Newton Correctional Facility and in his individual capacity; WALTER "KIP" KAUTZKY; JOHN BALDWIN, in his official capacity as Deputy Director of the Iowa Department of Corrections and in his individual capacity; GARY MAYNARD, in his official capacity as Director of the Iowa Department of Corrections and in his individual capacity; HAYWOOD BELLE, RENEE SNEITZER, ROBYN MILLS, ARTHUR NEU, SUELLEN OVERTON, WALTER REED, JR., and DONALD TIETZ, in their official capacities as members of the Iowa Board of Corrections and in their individual capacities; PRISON FELLOWSHIP MINISTRIES; and INNERCHANGE FREEDOM INITIATIVE;
Defendants.

SECOND AMENDED COMPLAINT

I. Introduction 1. Defendant Prison Fellowship Ministries ("Prison Fellowship") operates a pervasively
religious pre-release program called the InnerChange Freedom Initiative ("InnerChange," or "the InnerChange program," or "IFI") in the Newton Correctional Facility ("Newton") in the State of Iowa ("the State"). Inmates who participate in the InnerChange program are housed in a separate unit of Newton, where InnerChange immerses them in "24-hour per day Christ-centered Biblebased program[ruing]." During nearly all their waking hours, participating inmates are subjected to intensive, evangelical, Biblically-based instruction from a Christian fundamentalist standpoint. In rooms whose walls are lined with scripture, the inmates study the Bible, memorize Bible verses, and pray. In Prison Fellowship’s own words, the "major purpose of the program" is "transformation" to be "brought about by depending on Christ."
2. A substantial portion of the InnerChange program’s budget is paid for by State funds taken from profits the State makes off telephone calls that are placed by inmates and that are paid for by inmates and by family members, friends, and attorneys of inmates. State moneys that were obtained from persons who do not subscribe to the religious teachings of the InnerChange program are thus being used and allocated to pay for pervasively religious, evangelical, fundamentalist Christian instruction.
3. In order to take part in the InnerChange program, imnates must agree to be subjected to intensive instruction in InnerChange’s fundmnentalist Christian teachings. Recruitment materials provided to prospective participants make clear that there is a place in the InnerChange program only for those who subscribe to or are willing to actively cooperate in being converted to a fundamentalist, evangelical form of Christianity. Prospective participants are told that "It]he
2

program confronts prisoners with the choice of embracing new life in Christ and personal transformation, or remaining in the stranglehold of crime and despair," that "[t]rue transformation begins with salvation, also called conversion," and that "[c]onversion is when you turn away from what is negative and turn to Christ." In order to successfully proceed through the program, inmates must receive passing marks on evaluations in which they are rated on explicitly religious criteria, such as "[a] s faith proceeds joy, demonstrates a belief in Jesus Chris[tp, ].r.a.y.s in the Spirit," and "[p]uts God first in his life, ’serves no idol’ and is quick to praise God." The State’s sponsorship and financing of the InnerChange program thus discriminates against imnates who do not subscribe to the particular form of Christianity taught by InnerChange.
4. Inmates who participate in the InnerChange program receive numerous privileges denied to non-participating inmates. InnerChange participants live in an "honor unit" where they are given keys to their own cells and access to private bathrooms, while non-participating inmates live in a "lock-up unit" where correctional officers have sole control over locks to cell doors and where the toilet stools are located in the middle of cells. InnerChange participants receive a broad range of other benefits denied to non-participating inmates, such as additional visits with family members, free telephone calls to family members, access to computers and word-processing equipment, and access to a large, projection-screen television. The operation of the InnerChange program therefore gives inmates incentives to subject themselves to religious indoctrination.
5. Prison Fellowship and InnerChange have a publicly announced policy of employing only Christians as staff members and allowing only Christians to serve as volunteers. All InnerChange employees and volunteers must subscribe to a fundamentalist Statement of Faith
3

affirming, among other things, that they "believe that all people are lost sinners and cannot see the Kingdom of God except through the new birth" and "that the Bible... is without error in all its teachings, including creation, history, its own origins, and salvation." State funds are used to pay portions of the salaries of InnerChange employees. The State is thereby financing religious discrimination in employment.
6. For these and other reasons, the State’s sponsorship and financing of the InnerChange program violates the Establishment Clause of the First Amendment of the U.S. Constitution and the Bill of Rights of the Iowa Constitution. The plaintiffs, Iowa prison inmates who do not subscribe to the religious beliefs taught in the InnerChange program, accordingly seek injunctive and declaratory relief barring the defendants from continuing to operate the program.
II. Jurisdiction and Venue 7. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and
1367. 8. The Court has the authority to grant declaratory relief pursuant to the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 and 2202. 9. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b), as the plaintiffs are
incarcerated within this district, the InnerChange program is operated within this district, and most of the defendants are located within this district.
10a. To the extent that 28 U.S.C. § 1997e is applicable in this case, plaintiffs have exhausted all available administrative remedies. Plaintiff Jerry Ashburn filed a grievance challenging the State’s sponsorship and promotion of the ImlerChange program on August 7,
4

2002. That grievance was denied on August 28, 2002. PlaintiffAshburn timely appealed to the Warden of Newton on August 29, 2002. The appeal was denied on September 11, 2002. Plaintiff Ashburn timely made his final appeal to the Regional Deputy Director of the Iowa Deparmaent of Con-ections ("DOC") on September 13, 2002. That appeal was denied on October 29, 2002. This exhausted all ofplaintiffAshbum’s appeals pursuant to the DOC’s grievance and appeal policies.
10b. Plaintiffs Jerry Ashbum, Louis Boldon, Bryan Chandler, Robert Engle, Joel McKeag, Troy Redd, Kevin Watson, and Valentino Whitaker each filed two additional grievances challenging the State’s sponsorship and promotion of the innerChange program between mid-January and early February of 2003. The DOC processed the grievances as group grievances. Each of the grievances was denied. Each of the plaintiffs timely appealed to the Warden of Newton. All of the appeals were denied. Each of the plaintiffs timely filed their final appeals to the Regional Deputy Director of the DOC. Section IV(F)(2)(a) of the DOC’s Grievance Resolution Process Policy provides that appeals of grievance decisions are to be resolved within thirty days of receipt. Section IV(G) of that Policy provides, "The maximum period between receipt of a grievance and the final appeal response will not exceed 90 days unless extensions have been given." The DOC failed to respond to the final appeals within the 30-day appeal response time limit or the 90-day overall time limit. Plaintiffs’ administrative remedies were exhausted at the time those deadlines passed. On May 12, 2003, after the deadlines passed, the DOC did provide a response, stating that this "pending litigation will hopefully resolve the issues you are concerned about," thereby confirming that all available administrative remedies have been exhausted.

10c. Plaintiff Bilal Shukr also filed grievances challenging the state’s sponsorship and financing of the InnerChange program. The DOC failed to respond to plaintiff Shukr’s grievances within the time limits provided by the DOC’s Grievance Resolution Process Policy. Plaintiff Shukr’s available administrative remedies have thus also been exhausted.
10d. Copies of plaintiffs’ grievances and appeals and the State’s responses thereto are attached to this complaint.
11. In addition, and in the alternative, plaintiffs aver that 28 U.S.C. § 1997e is not applicable in this action, as this action does not challenge (or, in the alternative, is not limited to challenging) prison conditions; it challenges the unconstitutional use by the State of funds taken from profits the State makes on phone calls by inmates.
III. Parties 12a. Plaintiff Jerry D. Ashburn is an inmate in Newton. He subscribes to the faith of the
reorganized Church of Jesus Christ of Latter-Day Saints. Plaintiff Ashburn does not subscribe to the religious beliefs taught in the knnerChange program. Plaintiff Ashburn therefore cannot participate in the InnerChange program without betraying his religious beliefs. The State’s sponsorship of the InnerChange progrmr~ presents plaintiff Ashburn with the choice of compromising his religious beliefs in order to take part in the program and to thereby obtain the privileges enjoyed by participating inmates, or staying true to his religious beliefs while foregoing the many benefits enjoyed by inmates who enroll in IrmerChange.
12b. Plaintiff Louis Boldon is an inmate in Newton. He subscribes to the Muslim faith. Plaintiff Boldon does not subscribe to the religious beliefs taught in the IamerChange program.

Plaintiff Boldon therefore cannot participate in the InnerChange program without betraying his religious beliefs. The State’s sponsorship of the InnerChange progrmn presents plaintiff Boldon with the choice of compromising his religious beliefs in order to take part in the program and to thereby obtain the privileges enjoyed by participating inmates, or staying true to his religious beliefs while foregoing the many benefits enjoyed by inmates who enroll in InnerChange.
12c. Plaintiff Bryan Chandler is an inmate in Newton. He subscribes to the Roman Catholic faith. Plaintiff Chandler does not subscribe to the religious beliefs taught in the InnerChange program. From 1997 through 1999, plaintiff Chandler was housed in Unit E of the Newton Correctional Facility, which is the inmate living unit that now houses the InnerChange program. As explained in more detail below in ¶ 46, Unit E is by far the most desirable living unit for inmates in Newton, as it is the only one in which inmates have access to private bathrooms and have keys to their own cell doors. When plaintiff Chandler lived in Unit E, it was known as the "honor unit," and it was reserved for those inmates who had established a record of good behavior and were considered to pose the lowest security risks. However, when the InnerChange program commenced, Unit E was turned over to InnerChange. Plaintiff Chandler wished to stay in Unit E, and so he enrolled in a six-week InnerChange orientation program. After completing the orientation, plaintiff Chandler decided that he could not continue to participate in the InnerChange program without compromising his religious beliefs, and so he withdrew from the program and was forced to leave Unit E. The State’s sponsorship of the InnerChange program thereby caused plaintiff Chandler to lose the privileges enjoyed by inmates who live in Unit E, in order to stay true to his religious beliefs.
12d. Plaintiff Robert Engle is an inmate in Newton. While he was brought up in the

Methodist faith, he now is not a religious person. Plaintiff Engle does not subscribe to the religious beliefs taught in the InnerChange program. Plaintiff Engle therefore cannot participate in the IrmerChange program without compromising his beliefs with respect to religion and subjecting himself to religious indoctrination in religious tenets which he does not hold. The State’s sponsorship of the IrmerChange program presents plaintiff Engle with the choice of subjecting himself to indoctrination in religious teachings to which he does not subscribe to thereby obtain the privileges enjoyed by participating inmates, or staying true to his beliefs with respect to religion while foregoing the many benefits enjoyed by inmates who enroll in IrmerChange.
12e. Plaintiff Joel McKeag is an inmate in Newton. PlaintiffMcKeag is a Christian who does not belong to any denomination. He is a deep believer in his faith, and he has devoted a great deal of time to intense personal study of the Biblical text. Plaintiff McKeag views the Bible from a Hebraic perspective, which counsels that understanding the original Hebrew language and the historical and cultural setting in which the Bible was written is critical to correctly interpreting the Bible. Accordingly, plaintiff McKeag believes that most, if not all, of the theology taught in the InnerChange program is in error because it is based on mistranslations or misunderstandings of the Biblical text. Like plaintiff Chandler, plaintiffMcKeag lived in Unit E of Newton until the InnerChange program entered Newton. PlaintiffMcKeag also wanted to stay in Unit E, in order to continue to enjoy the better living conditions of that unit, so he enrolled in a thirty-day InnerChange orientation program. When he attempted to share his Hebraic perspective with InnerChange instructors, they soundly rebuffed him, making clear that there is no place in the InnerChange program for theological debate. Plaintiff McKeag’s
8

religious faith compels him to express his disagreements with religious teachings that he believes to be in error instead of listening to erroneous theology and remaining silent. The lnnerChange orientation made clear to plaintiffMcKeag that if he were to enroll in the innerChange program, he would promptly be expelled for expressing his religious views instead of accepting InnerChange’s theological teachings. As plaintiff MeKeag could not participate in the InnerChange program without submitting to religious instruction with which he does not agree, he chose not to enroll in the program and was forced to leave Unit E. The State’s sponsorship of the InnerChange program thereby caused plaintiff McKeag to lose the privileges enjoyed by irunates who live in Unit E, in order to stay true to his religious beliefs and studies.
12f. Plaintiff Troy Redd is an inmate in Newton. He practices Islam. PlaintiffRedd does not subscribe to the religious beliefs taught in the InnerChange program. Plaintiff Redd therefore cannot participate in the InnerChange program without betraying his religious beliefs. The State’s sponsorship of the InnerChange program presents plaintiff Redd with the choice of compromising his religious beliefs in order to take part in the program and to thereby obtain the privileges enjoyed by participating inmates, or staying tree to his religious beliefs while foregoing the many benefits enjoyed by inmates who enroll in IrmerChange.
12g. PlaintiffBilal Shukr (a.k.a. Bobby Shelton) is an inmate in the Iowa State Penitentiary. Plaintiff Shukr applied for the InnerChange program and enrolled in the InnerChange introduction program. However, plaintiff Shukr decided not to continue with InnerChange after he realized that taking part in the program would mean abandoning his religious beliefs. Plaintiff Shukr subscribes to the Muslim faith. He does not subscribe to the religious beliefs taught in the InnerChange program. Plaintiff Shukr’s understanding of his faith

is that a Muslim betrays his faith and stops being a Muslim if he consents to even be present in a room where the kinds of Christian religious activities (such as prayers to Jesus) that are part of the InnerChange program take place. The State’s sponsorship of the InnerChange program presents plaintiff Shukr with the choice of compromising his religious beliefs in order to take part in the program and to thereby obtain the privileges enjoyed by participating inmates, or staying true to his religious beliefs while foregoing the many benefits enjoyed by inmates who enroll in IrmerChange.
12h. PlaintiffKevin Watson is an inmate in Newton. He subscribes to the Muslim faith. Plaintiff Watson does not subscribe to the religious beliefs taught in the InnerChange program. Plaintiff Watson therefore cannot participate in the InnerChange program without betraying his religious beliefs. The State’s sponsorship of the InnerChange program presents plaintiff Watson with the choice of compromising his religious beliefs in order to take part in the program and to thereby obtain the privileges enjoyed by participating inmates, or staying tree to his religious beliefs while foregoing the many benefits enjoyed by inmates who enroll in InnerChange.
12i. PlaintiffValentino Whitaker is an inmate in Newton. He subscribes to the Lutheran faith. PlaintiffWhitaker does not subscribe to the religious beliefs taught in the InnerChange program. Plaintiff Whitaker therefore cannot participate in the IrmerChange program without betraying his religious beliefs. The State’s sponsorship of the InnerChange program presents plaintiff Whitaker with the choice of compromising his religious beliefs in order to take part in the program and to thereby obtain the privileges enjoyed by participating inmates, or staying true to his religious beliefs while foregoing the many benefits enjoyed by inmates who enroll in InnerChange.
l0

13a. Plaintiffs Ashbum, Boldon, Chandler, Engle, McKeag, Redd, Watson, and Whitaker also pay for telephone calls that they make from Newton. Profits that the State makes on these calls are used to fund the InnerChange program. The State thus is using money involuntarily taken from plaintiffs to pay for religious instruction with which plaintiffs do not agree. Plaintiff Shukr also has paid for telephone calls he made from the Iowa State Penitentiary; and the State similarly used profits it made on those calls to pay for the InnerChange program. In addition, by offering intensive rehabilitation instruction based on evangelical, fundamentalist Christian Protestant tenets, without making available similar instruction based on the tenets of any other faith or philosophical perspective, including the faiths and perspectives subscribed to by the plaintiffs, the State makes plaintiffs feel that the State endorses evangelical, fundm~aentalist Christian Protestant religious views and favors them over plaintiffs’ own views with respect to religion. For the reasons stated in this paragraph and paragraphs 12a through 12i, the State’s sponsorship and financing of the InnerChange program has harmed and continues to harm the plaintiffs.
13b. Plaintiffs Ashburn, Boldon, Chandler, Engle, McKeag, Redd, Watson, and Whitaker are plaintiffs in Case No. 4:02-cv-90447. Plaintiff Shukr is a plaintiff in Case No. 4:03-cv-90101.
14. Defendant Prison Fellowship Ministries is a non-profit corporation that is incorporated in the District of Columbia and headquartered in Reston, Virginia. Defendant Prison Fellowship proclaims itself to be "focused on one overriding vision: That God’s kingdom will be manifested as the redemptive grace and peace of Jesus Christ are experienced by those impacted by crime." Prison Fellowship’s mission statement is: "To exhort, equip, and assist the
11

Church in its ministry to prisoners, ex-prisoners, victims, and their families, and in its promotion of biblical standards of justice in the criminal justice system." Prison Fellowship’s stated goals include "[m]aking [d]isciples: [e]nabling believers impacted by crime to become consecrated followers of Jesus Christ." Defendant Prison Fellowship operates the IrmerChange program.
15. Defendant InnerChange Freedom Initiative is a non-profit corporation that is incorporated in Virginia, is headquartered in Reston, Virginia, and maintains an office in Newton, iowa. Defendants Prison Fellowship and InnerChange have jointly signed contracts with the DOC that provide for their operation of the InnerChange program and for the State’s financing of the InnerChange program. Defendant InnerChange is wholly controlled by defendant Prison Fellowship. Defendant IrmerChange appears to be a pass-through entity that transfers moneys received by it from government bodies to Prison Fellowship. Defendant InnerChange has been fimded mainly or entirely by government funds. In its 2000-2001 fiscal year, over 99 percent of InnerChange’s total revenue of $689,877 came from government payments, including $421,907 from the State of Iowa (and the rest from the State of Kansas, where there is also a state prison with an InnerChange program). In the same fiscal year, all of InnerChange’s revenue was transferred to Prison Fellowship. Prison Fellowship then disbursed that money to pay for InnerChange program expenses and staff salaries.
16. Prison Fellowship and innerChange are named as defendants herein on the grounds that their conduct in connection with the InnerChange program constitutes state action. Prison Fellowship and IrmerChange operate the InnerChange program pursuant to contractual and administrative grants of rights and privileges to them by the State. A substantial portion of the InnerChange program’s budget is paid for by State funds, and the State otherwise significantly
12

aids the program, including by providing physical space and security for it. The State has delegated to Prison Fellowship and InnerChange the performance of a traditionally public function - supervision and rehabilitation of prison inmates. The InnerChange program is subject to substantial regulation by the DOC. The DOC is entwined in the management and control of the InnerChange program, including through significant involvement in the recruitment of participating imnates and in the resolution of numerous issues and disputes that arise with respect to the operation of the program. The contacts between DOC officials and ImnerChange officials are so close and frequent that a symbiotic relationship exists between the State and Prison Fellowship/InnerChange. With full knowledge of the nature of the InnerChange program, the State invited the IrmerChange program into Newton. The State is fully responsible for the conduct by Prison Fellowship and InnerChange described in this complaim, there is a close nexus between the State and that conduct, and the conduct may fairly be treated as that of the State itself.
17. In addition, and in the alternative, Prison Fellowship and InnerChange are named as defendants herein pursuant to Fed. R. Cir. P. 19. Prison Fellowship and IrmerChange have a contractual relationship with the State that plaintiffs allege is unconstitutional. Part of the relief sought by this action is an order requiring Prison Fellowship and InnerChange to return to the State all funds paid to them by the State; therefore, complete relief cm-mot be accorded among the other parties in the absence of Prison Fellowship and InnerChange. Resolution of this action in the absence of Prison Fellowship and InnerChange will subject the other parties to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations, for Prison Fellowship and InnerChange could attempt to protect their contractual relationship with the State through a
13

separate action. The interests of Prison Fellowship and InnerChange in obtaining funds through their contract with the State and in indoctrinating prison inmates in their religious views would be affected if this action were to proceed without their participation.
18. Defendant Terry Mapes is sued herein in his official capacity as Warden of Newton and in his individual capacity. Defendant Mapes is responsible for overseeing operations at Newton. Defendants Mapes has permitted and continues to permit the InnerChange program to be operated at Newton. Defendant Mapes has known, or reasonably should have known, that the State’s sponsorship and financing of the InnerChange program clearly violated the Establishment Clause and the Iowa Bill of Rights.
19. Defendant Walter "Kip" Kautzky is sued herein in his individual capacity. Defendant Kautzky served as Director of the DOC from 1997 until December 31, 2002. Defendant Kautzky authorized the operation of the IrmerChange program at Newton and the State’s financing of the InnerChange program. On behalf of the DOC, defendant Kautzky signed contracts with Prison Fellowship and InnerChange pursuant to which the IrmerChange program has been operated and funded. Defendant Kautzky knew, or reasonably should have known, that the State’s sponsorship and financing of the InnerChange program clearly violated the Establishment Clause and the Iowa Bill of Rights.
20. Defendant John Baldwin is sued herein in his official capacity and in his individual capacity. Defendant Baldwin is Deputy Director of the DOC and served as Acting Director of the DOC from January 1, 2003 until March 2003. As Acting Director of the DOC, Defendant Baldwin continued to permit the InnerChange program to be operated at Newton and to be partially financed by the State. As Acting Director of the DOC, defendant Baldwin had the
14

authority to terminate the InnerChange program, but he did not do so. Defendant Baldwin has known, or reasonably should have known, that the State’s sponsorship and financing of the InnerChange program clearly violated the Establishment Clause and the Iowa Bill of Rights.
21. Defendants Haywood Belle, Frances Sneitzer, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr., and Donald Tietz are named as defendants herein in their official capacities as members of the Iowa Board of Corrections. The Board of Corrections authorized the operation of the InnerChange program at Newton and the State financing of the InnerChange program. The Board of Corrections has the authority to terminate the innerChange program, but it has not done so. The members of the Board of Corrections knew, or reasonably should have known, that the State’s sponsorship and financing of the InnerChange program clearly violated the Establishment Clause and the Iowa Bill of Rights, and so, to the extent that they individually voted to approve the operation and financing of the IrmerChange program, they are named as defendants herein in their individual capacities.
22. Defendant Gary Maynard is sued herein in his official capacity as Director of the DOC and in his individual capacity. Defendant Maynard has served as Director of the DOC since March 2003. The Director of the DOC is the DOC’s chief administrative officer. As Director of the DOC, defendant Maynard has the authority to terminate the InnerChange program. He has not done so, but has instead continued to permit the InnerChange program to be operated at Newton and to be partially financed by the State. Defendant Maynard has known or reasonably should have known that the State’s sponsorship and financing of the InnerChange program clearly violate the Establishment Clause and the Iowa Bill of Rights.
23. The conduct by the State alleged to be unconstitutional in this complaint was
15

authorized by the Board of Corrections and by defendants Kautzky, Baldwin, Maynard, and Mapes.
IV. General Allegations A. The Pervasively Religious Nature of the InnerChange Program 24. Approximately 200 Iowa prison inmates participate in the InnerChange program.
The participating inmates are housed in a separate unit in Newton. InnerChange runs virtually every aspect of this unit except for security. The InnerChange program is pervasively sectarian. During nearly all their waking hours, participants are subjected to intensive, evangelical, Biblically-based instruction from a Christian fundamentalist standpoint. Each inmate’s day starts with morning prayer. Most of an inmate’s day consists of taking part in InnerChange’s evangelical, fundamentalist, Biblically-based classes and programming. The walls in the Newton unit that houses participating inmates are lined with scripture. Program staffpray with participating inmates. Chapel service is mandatory on Sundays.
25. IrmerChange’s own promotional and program materials include statements that describe the program as follows:
¯ (a) The InnerChange program "is a revolutionary, Christ-centered, valueshbased pre-release prison program supporting prison inmates through their spiritual and moral transformation."
¯ (b) "[T]he application of biblical principles is not an agenda item - it is the agenda."
¯ (c) "All programming - all day, every day- is Christ-centered."
16

¯ (d) The program is a "24 hour per day Christ-centered Bible-based program." ¯ (e) The program is "explicitly Christ-centered." ¯ (f) The InnerChange program in Iowa is "one of the prisons Prison Fellowship actually runs as a Christian institution." ¯ (g) "Utilizing a totally Christ-centered, biblically based curriculum, IFI staff and a great number of Christian volunteers immerse member inmates in the transformational love of Jesus Christ." ¯ (h) "The IFI community serves as the crucible for learning and testing biblical principles." ¯ (i) "To facilitate this, biblical principles and core values are prominently displayed throughout the facility and promoted through memorization." ° (j) "All IFI courses are Bible-based." ¯ (k) The program "require[s] regular participation in Bible studies and other religious programming." ¯ (1) "Biblical principles are integrated into the entire course curriculum of IFi, rather than being compamr~entalized in specific classes." ¯ (m) "Prisoners are taught biblical principles in the context of teachable moments." ¯ (n) The program "is anchored in biblical teaching that underscores.., the reality of a new life through Christ." ¯ (o) "Transformation" is the "major purpose of the program," and "lilt is brought about by depending on Christ and living according to the Bible."
17

¯ (p) "The purpose of IFI is to have a prison community where members change ¯.. through a spiritual new birth through Christ."
¯ (q) "Inmates learn how God can heal them permanently, if they turn from their sinful past, are willing to see the world through God’s eyes, and surrender themselves to God’s will."
¯ (r) In the first phase of the program, "[W]e are mainly concerned about your inside transformation - your relationship with God W....e want you to learn what it means to have a personal relationship with Christ .A...nd we want you to learn how to apply the Bible to your life."
¯ (s) "The approach of the InnerChange Freedom Initiative concerning serving those with any addictive behavior, including substance abuse addictions, shall be based on a faith-based Christian discipleship model; i.e., only Jesus Christ is the cure for addictions."
¯ (t) "[T]hrough biblical transformation, the deleterious effects of substance abuse can be overcome."
¯ (u) The program is "training up [inmates as] future spiritual leaders that will be about the business of spreading the Good News of Jesus Christ." 26. According to InnerChange’s promotional and program materials, the program includes the following courses and components:
¯ (a) MasterLife. "’This course is a 26-week inductive bible study authored by the Southern Baptist Convention." It is "discipleship training.., a sequential, developmental, group disciplining process which enables the acknowledonent of Christ
18

as Master." ¯ (b) Survival Kit. This course "[h]elps new Christians chart their course for
survival in the Christian walk." The goals of this course include (i) "[1]earning about allowing Christ to indwell you;" (ii) "[t]eaching about how we become the body of Christ;" (iii) "[w]alking you[r] new walk in Christ;" and (iv) "[h]ow to reach others through Prayer and Witnessing."
¯ (c) Parenting Seminar. "This course is a biblical-based parenting workshop." The three goals of the course are (i) "[t]o know that God has established the family and the father to be the head of the family;" (ii) "[t]o learn how to teach Godliness to prisoners’ children;" and (iii) "[t]o model and demonstrate godliness."
¯ (d) Mentoring. The goals of this program component include: (i) to "[t]each the biblical principles for close friendships;" (ii) to "[d]evelop a long-term relationship which centers first on Christ;" and (iii) to "[d]evelop a long-term relationship built on biblical principles of prayer, biblical foundations fbr living, and problem-resolution."
¯ (e) Experiencing God. This course "seeks to assist members in identifying ways in which God is active in their everyday lives."
° (f) Heart of the Problem. This course "focuses on God’s counsel in truth in contrast to the ’world’s counsel and reasoning.’"
¯ (g) Brothers Keepers. "This course is a weekly group meeting where members are taught biblical principles for loving, Christ-centered peer relationships."
¯ (h) Marriage and Family. "This interactive course teaches biblical principles using proven techniques to help the inmate and family members restore and rebuild their
19

family relationships." ¯ (i) Sycamore Tree. This program component provides "[a]n opportunity for the
church to help offenders, victims, and community members meet in the presence of Jesus." Its goals include "experienc[ing] Biblical confession, repentance, forgiveness, and reconciliation related to specific criminal acts" and "experienc[ing] salvation or Christian growth." B. The State’s Funding of Religious Instruction by innerChange 27. The State entered into a contract with Prison Fellowship and InnerChange in 1999. Defendant Kautzky signed this contract on behalf of the State. The initial contract tema was from September 1, 1999 through August 31, 2000. The contract was renewed every year, first for a term from September 1, 2000 through June 30, 2001, then for a term from July 1, 2001 through June 30, 2002, and most recently for a term from July 1, 2002 through June 30, 2003. The most recent contract renewal gives the State the option to further renew the contract for two one-year periods, the second of which would end on June 30, 2005. 28. The contract provides for state financing and support of InnerChange. Pursuant to the contract, the State has expended $282,000 on the irmerChange program in the 1999-2000 fiscal year, $373,000 in the 2000-2001 fiscal year, and $325,025 in the 2001-2002 fiscal year. Of these amounts, $229,000 in cash was paid directly to InnerChange for program costs during the 1999-2000 contract term, $191,000 in cash was paid to InnerChange for program costs during the 2000-2001 term, and between $191,000 and $230,000 in cash was paid to InnerChange for program costs during the 2001-2002 term. The State has been paying approximately 40 to 50 percent of IrmerChange’s program costs.
2O

29. The balance of the money provided by the State to support InnerChange has been spent on in-kind aid. The State leased and eventually purchased a modular building to provide office and program space for the InnerChange program. The State paid the full cost of leasing and purchasing this building, including a $59,000 installation fee in 1999, approximately $8,300 per month in lease payanents from 1999 until early 2002, and a $61,576 purchase payment in 2002. The office and program space provided by the State for innerChange includes airconditioned classrooms, offices for InnerChange staff, a conference room for the staff, staff restroom facilities, library facilities, and recreational areas. The State also has been providing InnerChange with beds for the participating inmates,-security staff for the Newton unit housing the program, access to chaplains and correctional counselors, and transportation for participating inmates.
30. The State’s payments to InnerChange have been made out of the DOC’s inmate Telephone Rebate Fund. The DOC charges inmates rates that are substantially above market rates to make telephone calls to families, friends, and attorneys. Phone service in Iowa correctional facilities is provided and operated by a state agency called the Iowa Communications Network ("ICN"). The charges imposed on inmates for telephone calls are far greater than the costs incurred by the ICN and the DOC in connection with the calls. The State thus makes substantial profits on inmate telephone calls. The State places these profits in the Imnate Telephone Rebate Fund. By law, the DOC is required to use all funds deposited in the Inmate Telephone Rebate Fund "for the benefit of inmates." However, since the InnerChange program began, a substantial portion of the funds placed in the Inmate Telephone Rebate Fund has been spent on the InnerChange program.
21

3 la. In other words, the State has been funding InnerChange out of profits that the State makes on inmate telephone calls, including calls made and paid for by plaintiffs. The State has thereby been expropriating funds from inmates (including plaintiffs), family members and friends of inmates, and attorneys of inmates to finance InnerChange. Inmates (including plaintiffs), family members and friends of inmates, and attorneys of imr~ates are presented by the State with a choice of foregoing telephone conversations with their relatives or other persons who are important to them, or funding religious instruction with which they do not agree.
3 lb. The State significantly raised inmate telephone rates after the innerChange progrmn commenced, in part to pay for the cost of the InnerChange program. In addition, in order to finance the InnerChange program, the State terminated certain expenditures from the Inmate Telephone Rebate Fund that had provided general benefits to inmates without regard to religion. Thus, as a result of the InnerChange program, plaintiffs pay higher telephone rates while receiving fewer benefits from the Inmate Telephone Rebate Fund.
32a. For the 2003 fiscal year, the State has allocated $229,250 from the Inmate Telephone Rebate Fund for the IrmerChange program. Of this amount, $191,625 is being paid to InnerChange for program costs. The rest is being used by the State to provide non-cash services that support the program.
32b. For the 2003 fiscal year, $172,591 has been allocated by the State from the Healthy Iowans Tobacco Trust Fund for the InnerChange program. The funds in the Tobacco Trust Fund were obtained by the State through the settlement of litigation between the State and tobacco companies arising out of conduct by the tobacco companies harmful to Iowa smokers and others. Under Iowa Code § 12.65, "[m]oneys deposited in the healthy Iowans tobacco trust fund shall be
22

used only.., for purposes related to health care, substance abuse treatment and enforcement, tobacco use prevention and control, and other purposes relating to the needs of children, adults and families in the state." However, the State is using the Tobacco Trust Fund money to expand the InnerChange program to the Correctional Release Center ("CRC"), a minimum security facility on the Newton complex that houses inmates who are permitted to work at local jobs outside the facility during the day but must return to the facility for the night. One of the three living units of the CRC is being turned over to the InnerChange program..An additional $310,000 has been allocated for the InnerChange program by the State from the Tobacco Trust Fund for the 2004 fiscal year; this money may in part be used to expand the InnerChange program to an Iowa correctional facility for women at Mitchellville.
32c. The State has also been using State general funds, obtained by the State through taxes on Iowa residents, to support the IrmerChange program. State general funds have been used to pay for the cost of housing inmates enrolled in InnerChange, utility and maintenance costs for InnerChange program and office space, and salary costs of DOC employees who have duties relating to InnerChange. Some of the expenditures of State general funds that support the lnnerChange program - such as payments for telephone calls relating to InnerChange and meals for meetings relating to IrmerChange - would not have been incurred at all if there was no irmerChange program in Iowa. In addition, the State has used State general funds to pay for lease payments and a lease buyout for the modular building that is utilized for IrmerChange office and program space. If the foregoing expenditures of State general funds to support IrmerChange were not being made, either the funds would be used in a constitutional manner benefitting Iowa taxpayers and residents, or the amount of taxes paid by Iowa taxpayers would be lower.
23

33. The defendants have publicly taken the position that the State funds paid to InnerChange for programming costs are expended only for "non-sectarian" portions of the program. In fact, however, the State’s payments to InnerChange are being used to actually pay for religious instruction, and to finance and support a pervasively religious program. According to InnerChange’s own promotional materials, "Biblical principles are integrated into the entire course curriculum of IFI, rather than being compartmentalized in specific classes," and "[a]ll prograrmrning - all day, every day - is Christ-centred." It is therefore impossible to separate the sectarian aspects of the InnerChange progrmn from the non-sectarian. The InnerChange program is wholly permeated by religion and is thus pervasively sectarian.
34. The manner in which InnerChange purports to distinguish sectarian expenses and non-sectarian expenses confirms that State funds are in fact being used by InnerChange to pay for and to support religious instruction. InnerChange attempts to allocate to each of its courses and program components a percentage that supposedly represents a "non-sectarian" portion. However, since "all programming - all day, every day - is Christ-centered" and "Biblical principles are integrated into the entire course curriculum," these allocations are without any validity. And courses that are treated as primarily non-sectarian in InnerChange’s percentage allocations are described in primarily religious terms in InnerChange’s program and promotional materials. Indeed, InnerChange treats as 100 percent non-sectarian an "Addiction Recovery" class that relies heavily on the Alcoholics Anonymous program, even though Alcoholics Anonymous is a religious program (as many federal court decisions have expressly held).
35. Likewise, InnerChange assigns each of its staff members a percentage that supposedly represents the non-sectarian portion of their work, and claims to bill the State only for
24

that portion of each staff member’s salary. For example, InnerChange claims that staff members called "Biblical Counselors" devote 16 percent of their time to non-sectarian work and 84 percent to sectarian work. IrmerChange further claims that 77 percent of the work done by their Office Administrator should be treated as non-sectarian, even though the Office Administrator’s work consists of support tasks for a pervasively sectarian program. And lnnerChange bills the State for items other than salaries, such as "advertising," "materials and supplies," "program and training materials," "postage and freight," "printing," "telephone," and "meals for staff and volunteers," without even attempting to divide these items into sectarian and non-sectarian components. Since these items support pervasively religious programming, they cannot properly be treated as non-sectarian, yet InnerChange so treats them anyway.
36. In addition, the State has not created any safeguards designed to prevent the use of money paid to InnerChange for religious instruction. The State does not monitor the InnerChange program to try to keep state money from being used for religious programming.
37. Moreover, State funds paid to InnerChange supplant and do not supplement private funds. In April 1997, before establishing the InnerChange program in Iowa, Prison Fellowship established an InnerChange program in a prison in Texas, which is still in place. State funds have not been used in Texas to pay for any InnerChange program costs there. The State of Iowa is thus using State funds to finance a religious program that could be successfully financed wholly with private dollars.
38. Furthermore, the State is delivering government funds directly to InnerChange. InnerChange then turns the money over to Prison Fellowship, which disburses the money to pay for innerChange program Costs and salaries of InnerChange staff. State cash is therefore being
25

delivered directly into the coffers of religious organizations. 39. Finally, the State is providing InnerChange with substantial in-kind aid, such as
physical program and office space and facilities, which is not restricted to secular use but is used to support the entirety of InnerChange’s pervasively religious programming.
C. The InnerChange Program’s Religious Discrimination Among Inmates 40. IlmerChange claims that the program is open to inmates of all faiths. In fact, however, the InnerChange program discriminates among inmates based on religion and is available only to imnates who subscribe to or are willing to actively cooperate in being converted to a fundamentalist, evangelical, form of Protestant Christianity. 41. InnerChange screens and selects its participating inmates. InnerChange requires participating inmates to "be willing to productively participate in a program that is explicitly Christian in both content and delivery." Non-Christian inmates are eligible only if they are "willing to actively participate in a Christ-centered, biblically based program." All inmates who wish to participate must sign an agreement stating that they understand that "the program contains religious content and is based upon Christian values and principles." InnerChange’s criteria for selecting inmates include "demonstrated commitment to participate in the IFI program" and "sincere motivation to cooperate." 42. Recruitment materials given to prospective participants make clear that there is a place in the InnerChange program only for those who are willing to embrace fundamentalist Christianity.The statements made in these materials to inmates who are considering the program include:
¯ (a) "You need to understand that this is a Christian program."
26

¯ (b) "The program confronts prisoners with the choice of embracing new life in Christ and personal transformation, or remaining in the stranglehold of crime and despair."
¯ (c) "IFI is a 24-hour-a-day program that promotes personal transformation of prisoners through the power of the Gospel.."
° (d) "[T]he program is based on the Gospel of Jesus Christ." ¯ (e) "An overall goal of Phase 1 [of the program] is for you to begin life transformation through the Gospel of Jesus Christ." ° (f) "True transformation begins with salvation, also called conversion." ¯ (g) "Conversion is when you mm away from what is negative and turn to Christ." ° 0a) "Then you try to live your life by His example and instructions found in the Bible." ° (i) "As you are transformed into the image of Christ, you have more and more integrity." ¯ (j) "Above all else," through the program, "you may discover the transforming love of Jesus Christ." ¯ (k) The program offers "a different group of people to hang with. Christians with positive values." ¯ (1) "All IFI graduates are expected to have ... a Christian mentor.., and a home church when released." 43. Selection for the InnerChange program involves a six-week introduction program
27

followed by a one-month orientation program, both of which are conducted by Prison Fellowship. As part of this process, prospective participants must COlrtplete a "Survey of Religious Beliefs and Practices," where they are asked to indicate their level of agreement or disagreement with various religion-related statements. One subsection in this survey is a "Religious Attitude Inventory," where the prospective participants must agree or disagree with religion-related statements such as "Christ died for sinners." Another subsection is a "Scriptural Literalism Scale," where agreement or disagreement must be expressed with statements such as "It]he precise words spoken by God may be found in the scriptures." InnerChange selects participants for its full program by evaluating the performance of prospective participants in the introduction and orientation programs and examining their "degree of spiritual walk." The DOC does not select InnerChange participants; it only has veto power over InnerChange’s selections.
44. Once inmates are actually admitted into the InnerChange program, they continue to be judged through religious criteria. They receive monthly evaluations based on various criteria on a scale of 1 to 5. Many of these criteria are explicitly religious, including:
¯ (a) "As faith proceeds joy, demonstrates a belief in Jesus Christ." ¯ (b) "Puts God first in his life, ’serves no idol’ and is quick to praise God." ¯ (c) "Prays in the Spirit." ¯ (d) "Has a vision/understanding of the Father and is enlightened spiritually as demonstrated by his personal attitudes." ¯ (e) "Conquers trials and tribulations through spending time in His Word." ¯ (f) "Maintains high spiritual morale without complaining and criticizing." ¯ (g) "Acts as a witness of God’s grace to others."
28

Obtaining an average score of less than 2 on an evaluation is grounds for removal from the InnerChange program. Obtaining an average score of 3 in each of eight behavior areas, some of which are dominated by religious criteria, is necessary to advance from one phase of the program to the next phase.
45. Any non-Protestant inmates who decide to and are permitted to participate in the InnerChange program are given little opportunity to continue to adhere to their faith. Program participants who are Catholic, Muslim, or of other non-Protestant faiths are permitted to attend religious services other than the Protestant ones provided by the program only if the time of the services does not conflict with program activities. Special requests made by non-Protestant program participants to accommodate their religious practices are not granted if they would keep an inmate from fully taking part in the program or from meeting program requirements. Faiths other than Protestant Christianity are denigrated during the program. As stated in an InnerChange brochure, "It’s the earnest desire of IFI that residents convert to Christ and follow His ways that lead to transformation."
46. Moreover, the State’s sponsorship of the InnerChange program creates incentives for inmates to undertake religious indoctrination in the specific tenets of the program. The State does not offer any program similar to lnnerChange for inmates who do not subscribe to and are not willing to be converted to the religious tenets taught in the InnerChange program. And inmates in the InnerChange program receive numerous privileges that are not available to the other inmates in Newton. Unlike other Newton inmates, who are housed in what is referred to as a "lock-up unit," participants in the IrmerChange program are housed in what is referred to as an "honor unit." Participants in the InnerChange program are given keys to their cell doors. The
29

other imitates in Newton are not, and the locks to their cell doors are controlled solely by correctional officers. Participants in the InnerChange program are permitted to leave their cells at night, while other Newton imllates are locked in their cells for the night. Participants in the InnerChange program have access to bathrooms stalls that are divided by partitions and have doors with sliding locks. The other inmates in Newton have access only to toilet stalls that are located in the middle of their cells, with no privacy. Participants in the InnerChange program are more likely than other inmates in Newton to be housed two to a cell instead of three to a cell. Participants in InnerChange live in cells with wooden doors; other inmates in Newton live in cells with steel doors.
47a. The "honor unit" that now houses IrmerChange participants was formerly reserved for inmates who established a record of good behavior while incarcerated and did not represent major security risks. In order to make room for the IlmerChange program, the State expelled the inmates who were living in the "honor unit" from that unit, including plaintiffs Chandler and McKeag.
47b. Similarly, the most desirable of the three living units in the CRC is being turned over to the InnerChange program. That unit has air conditioning and carpeting, while the other two units do not. The entirety of that unit is being handed over to InnerChange to house InnerChange participants, and all irmaates who do not participate in InnerChange are being expelled from that unit.
47c. Moreover, the CRC is the only facility in the Iowa correctional system that is purely a minimum security facility, and placement in the CRC is therefore highly desirable to inmates in the Iowa correctional system. Inmates who had been approved for transfers into the CRC have
30

been put on a waiting list instead of being moved into the CRC, while the DOC is holding about sixty empty living places in the CRC in reserve for InnerChange participants. InnerChange participants are thus being given priority for spaces in the CRC over inmates who do not participate in InnerChange.
48. Participants in InnerChange also have numerous other privileges that are denied to other inmates in Newton, ir~cluding the following:
(a) the right to have visits on six days of the week, instead of four days as is the case for other inmates;
(b) religious worship services with members of their family; (cl) free telephone calls to their family; (c2) free emergency telephone calls; (d) the right to make videos of themselves and send them home to their family; (e) preferences for better jobs at Newton; (f) the only certified drug treatment class available at Newton; (g) payment for the taking of certified rehabilitation courses; (h) payment of an allowance in exchange for taking college classes in theological studies; (i) different discipline procedures that tend to result in less severe discipline for violations of prison regulations; (j 1) access to computers, e-mail, and the internet; (j2) the right to e-mail family members; (j3) computer classes, which are free;
31

(k) free Bibles and religious articles; (1) free t-shirts with InnerChange logos, while other inmates are prohibited from wearing clothing with logos; (m) free art supplies; (n) the right to have personal contact after release with counselors and mentors they had while incarcerated; (o) assistance with housing and jobs upon release; (p) access to a large projection-screen television; (q) access to a music room; (r) access to many musical instntments not available to other inmates, who are allowed to have only harmonicas and unamplified guitars; (s) free three-ring binders, while other inmates are not even allowed to possess three-ring binders; (t) access, during celebrations, to free food prepared by outside vendors; (u) for InnerChange participants newly transferred to Newton, more favorable security classifications than other inmates newly transferred to Newton; (v) for some InnerChange graduates, the right to stay in Unit E after graduation; (w) for InnerChange graduates released on parole or probation, but no other parolees or probationers, the right to re-enter Newton; (x) for released InnerChange graduates who are no longer on parole or probation, greater rights to re-enter Newton than other persons released from prison who are no longer on parole or probation;
32

(y) for IrmerChange inmates placed at the CRC, greater rights to re-enter the main Newton facility than other inmates at the CRC;
(z) greater opportunities to participate in softball games and softball practice; (aa) the right to purchase canteen goods and place them into a community box from which other IrmerChange inmates can then take the goods, while inmates not enrolled in InnerChange are prohibited from maintaining such a community box or transferring money or~ canteen goods to their fellow inmates in any manner; and (bb) the right to answer phones in Newton at certain jobs, while other imnates are not permitted to answer phones in Newton under any circumstances. 49. The plaintiffs and other inmates in Newton and other Iowa correctional facilities must choose between foregoing all of the above-described privileges or submitting to intensive indoctrination in religious tenets to which they do not subscribe. 50. Furthermore, recommendations from InnerChange staff members can favorably influence parole decisions. To receive such recommendations from InnerChange staff, inmates must successfully proceed through the InnerChange program. Moreover, some inmates must complete certain certified rehabilitation programs in order to become eligible for parole. Some of these programs are available only at certain Iowa correctional facilities, and some of these programs have waiting lists. An inmate who completes the InnerChange program receives credit for completing all of these certified rehabilitation programs except one (sex offender treatment). Accordingly, many inmates can complete their required rehabilitation credits more quickly by enrolling in IrmerChange than by enrolling in individual non-lrmerChange certified rehabilitation programs. The State has thus created a system under which inmates can both increase their
33

chances of being paroled and move up the time at which they become eligible for parole by
submitting to and accepting intensive indoctrination in fundamentalist Christian religious
teachings.
D. The innerChange Program’s Religious Discrimination in Employment
51. IrmerChange and Prison Fellowship have publicly-announced policies of employing
only Christians as staff members and of requiring all volunteers to be Christian. InnerChange’s
website states that IrmerChange "requires that all staff and volunteers are Christians who are
living vital, empowered lives." The website further states, "IFI staff and volunteers seek to
model Christ through being controlled by the fruit of the Spirit." Similar language appears in
paper InnerChange promotional and informational materials.
52. innerChange staff members and volunteers must subscribe to and abide by Prison
Fellowship’s Statement of Faith, which reads:
We believe in one God, Creator and Lord of the Universe, the co-eternal Trinity; Father, Son, and Holy Spirit.
We believe that Jesus Christ, God’s Son, was conceived by the Holy Spirit, born of the Virgin Mary, lived a sinless life, died a substitutionary atoning death on the cross, rose bodily from the dead and ascended to heaven where, as truly God and truly man, He is the only mediator between God and man.
We believe that the Bible is God’s authoritative and inspired Word. It is without error in all its teachings, including creation, history, its own origins, and salvation. Christians must submit to its divine authority, both individually and corporately, in all matters of belief and conduct, which is demonstrated by true righteous living.
We believe that all people are lost sinners and cannot see the Kingdom of God except through the new birth. Justification is by grace through faith in Christ alone.
We believe in one holy, universal, and apostolic Church. Its calling is to worship and witness concerning its Head, Jesus Christ, preaching the Gospel among all nations and demonstrating its commitment by compassionate service to the needs of human beings
34

and promoting righteousness and justice. We believe in the necessity of the work of the Holy Spirit for the individual’s new birth and growth to maturity, and for the Church’s constant renewal in truth, wisdom, faith, holiness, love, power, and mission. We believe that Jesus Christ will personally and visibly return in glory to raise the dead and bring salvation and judgment to completion. God will fully manifest His kingdom when He establishes a new heaven and new earth, in which He will be glorified forever and exclude all evil, suffering, and death. 53. State of Iowa funds are used to pay a portion of the salary of each InnerChange staff member. The State is thereby financing religious discrimination in employment, including with funds expropriated from plaintiffs. Moreover, InnerChange’s contract with the State specifically provides that InnerChange may base employment decisions upon religious criteria~ notwithstanding any federal, state, or local laws, rules, ordinances, regulations, or orders to the contrary. The State is thus significantly aiding invidious religious discrimination in employment by Prison Fellowship and InnerChange, and that discrimination is fairly attributable to the State. E. The State’s Baekroom Agreement With and Cooperation With lnnerChange 54. The State agreed to allow Prison Fellowship to start the InnerChange program in Iowa without first ma~ng similar opportunities available to other groups, ha early 1998 and mid1998, Prison Fellowship officials had discussions with defendant Kautzky and other State officials about bringing the InnerChange program to Iowa. In mid-1998, defendant Kautzky and other State officials agreed to allow an InnerChange program to be started in iowa. After this agreement was privately reached, the State issued a public Request for Proposal that was tailored for the InnerChange program. 55. This Request for Proposal, issued in August 1998, was entitled °’Request for Proposal
35

for Non-Compensated Values Based Pre-Release Program." Though nominally inviting open bidding on a contract to provide "values based pre-release" programming, the Request for Proposal was actually designed to result in Prison Fellowship being awarded the contract. The Request for Proposal falsely stated that it sought only "non-compensated services" and that "It]here will be no state monies or compensation, in any form, given to the Contractor for the programming services provided." In fact, the State agreed to pay a substantial portion of the InnerChange program’s costs. Understandably, only Prison Fellowship responded to the Request for Proposal.
56. The manner in which the State agreed to contract with Prison Fellowship reflects State endorsement of and preference for religion in general and the specific religious tenets of the IrmerChange program in particular. The DOC does not make available to inmates any "values based pre-release" programming from a secular perspective or from the perspectives of faiths other than IrmerChange’s fundamentalist, evangelical Christian belief system.
57. In addition, state officials closely cooperate with hmerChange officials with respect to administration of the IrmerChange program. State officials and employees have regular and close contact with InnerChange officials and employees with respect to numerous issues that arise out of the operation of the program. State officials also provide considerable assistance to InnerChange with respect to recruitment of inmates for the program. The State’s involvement with the InnerChange program has thereby resulted in excessive government entanglement with religion.
36

V. Claims for Relief Count One
(Violation of the Establishment Clause of the U.S. Constitution) 58. Paragraphs 1 through 57 above are incorporated herein as if fully set forth herein. 59. The Establishmel~t Clause of the First Amendment of the Constitution of the United States provides, °°Congress shall make no law respecting an establishment of religion." The Establishment Clause applies with full force and effect to the acts of state and local govermnent entities and officials pursuant to the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. 60. By sponsoring and financing the InnerChange program, the defendants have violated and contir~ue to violate the Establishment Clause in many ways, including as described below. 61. The State’s sponsorship and financing of the IrmerChange program has the primary effect of advancing religion. It results in governmental indoctrination. State funds are being used to finance and support a pervasively religious program, and those funds are put to specifically religious use. Government cash aid is being delivered directly into the coffers of religious organizations. This aid supplants and does not supplement private funds. No adequate safeguards exist to prevent the aid from being used for religious instruction. 62. The State’s sponsorship and financing of IrmerChange gives inmates incentives to subject themselves to religious indoctrination, and coerces them to do so. Inmates must choose between submitting to indoctrination in religious tenets with which they do not agree, or foregoing numerous privileges offered to participants in the InnerChange program. Inmates have in fact been deprived of privileges that had previously been given to them (such as residence in
37

Newton’s "honor unit") because they failed to submit to religious indoctrination in the tenets of the InnerChange program. The IrmerChange program defines the recipients of government benefits by reference to religion. Only those inmates who subscribe to evangelical, fundamentalist Christian beliefs or are willing to be converted to those beliefs can participate in the program.
63. The State’s sponsorship and financing of the innerChange program conveys to reasonable observers a message of endorsement of religion in general and of the specific fonr~ of Christianity taught by the IrmerChange program in particular. The State’s sponsorship and financing of the InnerChange program constitutes a governmental preference for Christianity in general and for the specific form of Christianity taught in the InnerChange program in particular.
64. The State is financing invidious discrimination in employment based on religion by Prison Fellowship and innerChange. Prison Fellowship and ImaerChange require all of their staff members to be Christians and to subscribe to and abide by Prison Fellowship’s Statement of Faith, and the State is partly paying the salaries of InnerChange staff.
65. Other than continuing to take responsibility for security, the State is allowing InnerChange to run the section of Newton in which participating inmates are housed. The State is thereby delegating government power to a religious organization.
66. State officials closely cooperate with InnerChange officials with respect to administration of the InnerChange program. The InnerChange program has thereby resulted in excessive government entanglement with religion.
67. By violating the Establishment Clause as set forth above, the defendants have, under color of statute, ordinance, regulation, custom, and/or usage, deprived plaintiffs of rights secured
38

by the First and Fourteenth Amendments of the U.S. Constitution, entitling plaintiffs to a remedy under 42 U.S.C. § 1983.
68. By virtue of the defendants’ violations of the Establishment Clause, plaintiffs are entitled to injunctive relief, declaratory relief, nominal damages, recoupment, and, restitution.
Count Two (Violation of Section 3 of the Iowa Bill of Rights) 69. Paragraphs 1 through 68 above are incorporated herein as if fully set forth herein. 70. Article I, Section 3, of the Iowa Constitution provides, "The General Assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister, or ministry." 71. By expropriating funds from plaintiffs and using those funds to pay for the support of a ministry, and for the reasons given in Count One, defendants have violated Article I, Section 3 of the Iowa Constitution. 72. By virtue of defendants’ violations of Article I, Section 3 of the Iowa Constitution, plaintiffs are entitled to nominal dmnages and declaratory relief against all defendants, and injunctive relief and recoupment against defendants Prison Fellowship and InnerChange.
Count Three (Violation of Section 4 of the Iowa Bill of Rights) 73. Paragraphs 1 through 72 above are incorporated herein as if fully set forth herein.
39

74. Article I, Section 4, of the iowa Constitution provides, in relevant part, "No religious test shall be required as a qualification for any office, or public trust, and no person shall be deprived of any of his rights, privileges, or capacities, or disqualified from the performance of any of his public or private duties.., in consequence of his opinions on the subject of religion."
75. By offering °’values based pre-release programming," and providing the numerous privileges available to participants in the IlmerChange program, only to inmates who subscribe to or are willing to convert to fundamentalist Christian religious tenets, defendants have deprived plaintiffs of rights and privileges on account of their opinions on the subject of religion, in violation of Article I, Section 4, of the Iowa Constitution.
76. By virtue of defendants’ violations of Article I, Section 4 of the Iowa Constitution, plaintiffs are entitled to nominal damages and declaratory relief against all defendants, and injunctive relief and recoupment against defendants Prison Fellowship and InnerChange.
VI. Prayer for Relief 77. Paragraphs 1 through 76 above are incorporated herein as if fully set forth herein. Injunction 78. The plaintiffs have no adequate remedy at law. WHEREFORE, plaintiffs
respectfully request a permanent injunction prohibiting continued operation of the InnerChange program in Newton or in any other Iowa correctional facility. In the alternative, and/or in addition, plaintiffs respectfully request a permanent injunction:
(a) prohibiting the payment of any State funds to Prison Fellowship or InnerChange and the use of any State funds or State in-kind aid to otherwise support the
40

IrmerChange program in any manner (and, alternatively, prohibiting the use of any State funds to pay any portion of the salaries of Prison Fellowship or InnerChange employees so long as Prison Fellowship or InnerChange continue to use religious criteria to select employees);
(b) requiring, if continued operation of the IrmerChange program is not fully enjoined, that benefits given to inmates participating in the InnerChange program be made available to non-participating inmates and that "values based pre-release programming" from the standpoints of all faiths and from a secular standpoint be made available to inmates; and
(c) requiring that plaintiffs Chandler and McKeag be returned to Unit E of Newton, and that Unit E once again be used to house those inmates who have the best records of behavior and represent the lowest security risks, based on the same standards that were used to select inmates for Unit E before the InnerChange program entered Newton.
Declaratory Judgment 79. An actual controversy exists between the parties as to whether the operation of the InnerChange program, and the State’s financing and sponsorship of the program, violate the Establishment Clause of the U.S. Constitution and the Bill of Rights of the Iowa Constitution. WHEREFORE, plaintiffs respectfully request a declaratory judgment declaring that:
(a) defendants Mapes, Kautzky, Baldwin, Maynard, Belle, Sneitzer, Mills, Neu, Overton, Reed, and Tietz violated the U.S. and Iowa Constitutions by authorizing the operation of the InnerChange program in Newton, the State’s financing and sponsorship
41

of the InnerChange program, and the other conduct described in this complaint; and (b) defendants Prison Fellowship and InnerChange violated the U.S. and Iowa
Constitutions by discriminating against inmates based on their religious beliefs in the offering and provision of"values based pre-release programming," and by discriminating in employment based on religion with respect to positions partly financed with govemment funds.
Nominal Damages 80. Plaintiffs’ fights under the Establishment Clause of the U.S. Constitution and the Bill of Rights of the Iowa Constitution were violated by defendants. WHEREFORE, plaintiffs respectfully request nominal damages against:
(a) defendants Mapes, Kautzky, Baldwin, and Maynard, for authorizing the operation of the InnerChange program in Newton, the State’s financing and sponsorship of the IrmerChange program, and the other conduct described in this complaint;
(b) those defendant members of the Board of Corrections who individually voted to authorize the operation of the InnerChange program in Newton and the State’s financing and sponsorship of the InnerChange program, for so doing; and
(c) defendants Prison Fellowship and InnerChange, for discriminating against plaintiffs and other inmates based on their religious beliefs in the offering and provision of"values based pre-release programming."
Recoupment/’Restitution 81. Defendants Prison Fellowship and InnerChange knew or reasonably should have known that the State’s payments to them for InnerChange program costs were unconstitutional,
42

and therefore they could not have reasonably relied on the payments for their expenses. Return to the State of the funds paid by the State to InnerChange would protect and advance the constitutional fights raised by this action by deterring Prison Fellowship, llmerChange, and other private organizations from accepting government funds in the furore where, as here, such payments of funds are clearly unconstitutional. WHEREFORE, plaintiffs respectfully request an order requiring Prison Fellowship and IrmerChange to return to the State all payments ever made to them by the State, and requiring that those monies be restored to the special state funds (such as the Inmate Telephone Rebate Fund) from which they were taken. Plaintiffs further request an order requiring that to the extent that rates for inmate telephone calls were increased in order to finance the IrmerChange program, each plaintiffbe given apro rata refund out of the Inmate Telephone Rebate Fund of the amount paid by him for telephone charges that is attributable to said increase.
43

Other Relief 82. Plaintiffs further respectfully request an order awarding plaintiffs the costs of this action, including attorneys’ fees, pursuant to 42 U.S.C. § 1988. 83. Plaintiffs further respectfully request that the Court award any other relief that the Court deems just and proper.

Respectfully submitted_,.
By: Dean Stowers, Esq.
Dean Stowers, Esq. Rosenberg, Stowers & Morse 1010 Insurance Exchange Building 505 Fifth Avenue Des Moines, Iowa 50309 Phone: (515) 243-7600 Fax: (515) 243-0583 E-mail: deanstowers@aol.com Cooperating Attorneys, Americans United
for Separation of Church and State

Alex J. Luchenitser, Esq.

Date:

Ayesha N. Khan, Esq., Legal Director* (appearing pro hac vice) Alex J. Luchenitser, Esq., Litigation Counsel (appearing pro hac vice) Americans United for Separation of Church and State 518 C Street NE Washington, DC 20002
Phone: (202) 466-3234 Fax: (202) 466-2587 E-mail: khan@au.org / luchenitser@au.org
*lead counsel

Counsel for plaintiffs

44

 
 UNITED STATES DISTRICT COURT IN AND FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

FILED 4/23/2004 1:41:57 PM, USDC, Southern District of Iowa

AMERICANS UNITED FOR

)

SEPARATION OF CHURCH AND

)

STATE, CAROL DELP, ARDENE

)

McKEAG and DOROTHY REDD,

)

)

Plaintiffs,

)

vs.

)

)

PRISON FELLOWSHIP MINISTRIES, et )

al.,

)

)

Defendants.

)

CIVIL NOS. 4-03-CV-90074 4-02-CV-90447 4-03-CV-90101
ORDER

Plaintiffs Americans United for Separation of Church and State, Carol Delp, Ardene

McKeag and Dorothy Redd have filed a Motion to Compel Additional Depositions (Clerk’s No. 73).

In support of this motion, plaintiffs have filed what can only be described as a plethora of

supporting documents, including their Memorandum of Points and Authorities (Clerk’s No. 74); a massive

Declaration by Alex J. Luchenitser, one of plaintiffs’ attorneys (Clerk’s No. 75); Plaintiffs’ Supplemental

Exhibit DD in support of the motion (Clerk’s No. 76); Plaintiff’s Reply in Support of Plaintiffs’ Motion to

Compel (Clerk’s No. 79); Supplemental Declaration of Alex J. Luchenitzser in Support of Plaintiffs’

Reply (Clerk’s No. 80), and two confidential filings, filed under seal, one containing Exhibits B and CC

to the Declaration of Alex J. Luchenitzser, and the other containing Exhibits FF to the Supplemental

Declaration of Alex J. Luchenitzser.

Defendants fileda Joint Memorandum in Oppositionto the Motion to Compel(Clerk’s No.

77), along with a Declaration of Peter A. Gilbert, one of defendants’ attorney, in support of the joint

memorandum (Clerk’s No. 78).

The Court heard oral arguments on plaintiffs’ motion on March 25, 2004, at the United States Courthouse in Des Moines, Iowa.
BACKGROUND OF THE CASE In these three consolidated cases, plaintiffs collectively allege that Prison Fellowship Ministries (PFM) and InnerChange FreedomInitiative (ICFI) have beenpermitted to operate, conduct and implement “a pervasively religious pre-release program”at the Newton Correctional Facility operated by the Iowa Department of Corrections, an agency of the state of Iowa. It is further alleged that this program immerses certain inmates selected for participation in the program in a “24 hour per day Christ-centered Bible-based program.” Plaintiffs also allege that these programs are paid for, at least in part, by state funds, some of which come from revenues generated by charges implemented by the Department of Corrections for telephone calls placed by inmates. It is also alleged that inmates who participate in these programs receive numerous privileges not afforded other inmates, which include but are not limited to placement in an “honor unit;” access to private bathrooms; additional visits with family members; free telephone calls to family members; access to computers and word processing equipment, as well as a large, projection-screen television. It is also asserted by plaintiffs that only Christian staff members of the Newton facility are employed in the program, and only Christians may serve as volunteers. Plaintiffs allege all this amounts to state sponsorship and financing of these programs in violation of the Establishment Clause of the First Amendment of the United States Constitution and the Bill of Rights of the Iowa Constitution. In addition to suing the PM and the ICFI, plaintiffs have also named a number of Department of Correction employees, as wellas the entire Iowa Board of Corrections as defendants. See
-2-

generally, plaintiffs’ Second Amended Complaint (Clerk’s No. 46); and Order of Court, September 12, 2003 (Clerk’s No. 53).
THE ISSUES A Scheduling Order was filed in this case on June 11, 2003 (Clerk’s No. 26). That order set trial for October 12, 2004, and also provided for deadlines to amend pleadings or add parties; to disclose expert witnesses; to complete discovery and to file dispositive motions. The Court amended that order on October 9, 2003 (Clerk’s No. 65), pursuant to a stipulation filed by all the parties (Clerk’s No. 60), the effect of which was to allow additional time for disclosure of expert witnesses by all parties. Once again, the Scheduling Order was amended on January 15, 2004 (Clerk’s No. 71), pursuant to stipulation, allowing additional time for expert witness disclosure, and granting a one-month extension for completion of discovery to April 18, 2004. The Scheduling Order was implemented by the Court, pursuant to the provisions of Fed. R. Civ. P. 16 and Fed. R. Civ. P. 26. While plaintiffs have denominated their motion as one to compel the taking of additional depositions, defendants correctly point out that this motion does not accurately describe the relief sought. In fact, plaintiffs are seeking this Court to amend the ten-deposition limit set in Fed. R. Civ. P. 30. Rule 30(a)(2)(A) provides in pertinent part that Rule 30. Depositions Upon Oral Examination (a) When Depositions May be Taken; When Leave Required.
* * *
-3-

(2) A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2), if the person to be examined is confined in prison or if, without the written stipulation of the parties.
(A) a proposed deposition would result in more than ten depositions being takenunder this rule or Rule 31 by the plaintiffs ...
* * *
Rule 26(b)(2) permits the Court to alter the ten-deposition limit noted in Rule 30.
Plaintiffs wish to dispose now, pursuant to Court order, Walter Kautzky, a former Director
of the Iowa Department of Corrections, John Baldwin, Assistant Director of Administration for the
Department of Corrections; CarolBoggess, a business manager at the Newton CorrectionalFacility; Jerry
Van Cleave, a biblical counselor for the ICFI; Ken Burger, a former Assistant Director of Offender
Services with the Department of Corrections; and plaintiffs want to be permitted to take a deposition
pursuant to Fed. R. Civ. P. 30(b)(6), directed at the ICFI and/or PFM, if the ICFI’s National Executive
Director, Jerry Wilger cannot answer questions in specific areas as outlined by plaintiffs in their motion.
Incorporated in this motion to compel is a request by the plaintiffs that they be allowed to
depose John Mathes, a former Newton Correctional Facility Warden, regarding factual issues pertinent
to this lawsuit, and which arose at the Newton Correctional Facility while Mathes was the warden. This
has been complicated because the state defendants have identified Mathes as an expert witness.
All this is before the Court because plaintiffs have already taken nine depositions. Those
deposed include Pam Haney, a correctional officer at Newton; Scott Foster, a Newton inmate; Larry
Lipscomb, a Newton employee; Kristine Weitzell, Newton Deputy Warden; Terry Stevens, a chaplain at
-4-

Newton; Lowell Brandt, an assistant director at the Department of Corrections; Patricia Shade, an office administrator for the ICFI; Sam Dye, a local director for the ICFI; and Chris Geil, a program manager for ICFI. The tenth witness to be deposed is Wilger.
At the time of the Rule 16 scheduling conference, none of the parties brought to the attention of this magistrate judge any perceived issues regarding the ten-deposition limit established by Rule 30. Subsequent to the entry of the Scheduling Order, and at the time it was amended twice by Court order through stipulation, none of the parties brought to the Court’s attention the fact that the ten-deposition limit was going to be a problem in this case.
Plaintiffs argue that this is “highly complex litigation.” Implicit in these assertions are the allegations that there are numerous issues subject to discovery, including but not limited to the manner in which the programs are funded, and how inmates are chosen, or perhaps excluded, from participation in these programs, as well as how the programs operate in detail.
Defendants strenuously resist plaintiffs’ motion, regardless ofhow it is styled or considered. They are argue that plaintiffs have simply “spent their capital” in taking depositions that they cannot justify, and that they have already obtained the information they seek, either through the depositions taken to date, and/or the defendants’ collective discovery responses to interrogatories and requests for production of documents. Of course, at this juncture the Court is not in a position to gauge the quality, volume or extent of any written discovery responses, and is not inviting an opportunity to do so. That is ultimately the role of the trier of fact.
Troubling to the Court is that plaintiffs’ motion, and defendants’ resistance, puts the Court in a position of having to second-guess the litigation strategy employed by plaintiffs’ counsel. This
-5-

magistrate judge finds it very strange that none of the named individualdefendants have yet to be deposed. Certainly those individuals, if they are worthy of being a named party in this litigation, must have pertinent crucial information relevant to plaintiffs’ allegations.
Notwithstanding the Court’s concerns, it has some comfort in the fact that the last of the ten allowed depositions pursuant to Rule 30 will be that of the Executive Director of the ICFI. Of course, that deposition is somewhat fraught with concern because if plaintiffs’ attorneys are not satisfied with the results of that deposition, and that would certainly be a subjective determination on their part, they want this Court, in advance to permit them to proceed with a Rule 30(b)(6) deposition directed at the ICFI.
This Court is not in the habit or the practice of micromanaging litigation. It is reluctant to delve into the issues presented here because of the potential for prejudice if a party is denied rights to discovery. In this regard, the Court is ever mindful of the dictates of Rule 26(b)(1), providing that the parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim, including the existence, description, nature, custody, condition and location to any books, documents or other tangible things, and the identity and location of persons having knowledge of any discoverable matter.
Also in the context of the claims by plaintiffs that this is a highly complex litigation, and the retort by defendants that plaintiffs really cannot even justify the deposition discovery they have already taken, is the recognition of the fact that this is a consolidation of three separate cases. Had their been no consolidation, the parties, in aggregate, could have taken 30 depositions on behalf of plaintiffs, and 30 depositions on behalf of defendants. Thus, while certainly relevant for the defendants to point to the fact that they are concerned about additional costs, and even duplication, the fact remains that this Court finds
-6-

no justification at this time to deny plaintiffs the right to take the depositions sought, noting that they are subject to the limitations, including time, as prescribed by Rule 30.
In arriving at this conclusion, the Court is not stating, and is not giving authority, to plaintiffs to notice 30 depositions. The Court will allow plaintiffs to take depositions from those persons identified in their motion to compel. The Court is treating the motion to compel as a motion for relief from the limitations in Rule 30(a)(2)(A), and as permitted by Rule 26(b)(2).
To the extent that the taking of these depositions generate the need for defendants to take additionaldepositions, the Court would strongly urge the parties to resolve that matter by stipulation. The Court will not deny defendants the right to take more than ten depositions if there is a cogent reason to do so.
The Court is quite concerned with the issue surrounding John Mathes. It is, of course, impossible at this point in time to know what information Mathes has regarding plaintiffs’ allegations in general, and it would appear that plaintiffs are not in a position to offer any insight on that subject matter either. The fact that the state defendants have named Mathes as an expert witness, and then apparently refused to permit him to be deposed on issues other than those upon which he may have given opinions, raises a red flag. The Court is not in agreement with the practice of any party shielding fact witnesses from testimony bydesignating them as expert witnesses. Plaintiffs will be permitted to depose Mathes regarding his knowledge and information as to the operations of the Newton Correctional Facility while he was warden, and regarding operation of ICFI and PFM programs. Whether he remains a viable expert witness is an issue for later determination, if necessary.
-7-

Mindful of the impact of this order upon the current discovery deadline, which has expired prior to the filing of this order, the Court extends discovery in this case to May 21, 2004. The Court is not, however, extending the deadline for filing dispositive motions, and is not in any way compromising the current trial date of October 12, 2004.
The Court notes emphatically thatit is notinclined to extend the dispositive motion deadline of June 12, 2004, and is absolutely opposed to continuing the trial date. Implicit in this cautionary comment is the reminder to all parties that, while they may view the filing of a dispositive motion as some mandatory right, the filing of such motion upon a schedule requested by the parties, without due concern for the ability of the Court to read the motions, briefs, exhibits and schedule oral arguments efficiently in advance of trial to allow for a fair comprehensive review of the motions and resistances, is unworkable.
For the foregoing reasons, plaintiffs’ motion to compel, as considered by the Court in the context of Rule 30(a)(2)(A) and Rule 26(b)(2), shall be and is granted.
IT IS SO ORDERED. Dated this 23rd day of April, 2004.
-8-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

IN THE MATTER OF AMERICANS UNITED FOR SEPARATION OF STATE, et al.,
Plaintiffs, v.
PRISON FELLOWSHIP MINISTRIES, et al.
Defendants.

* * * 4:03-cv-90074 (lead case) * * * * * MEMORANDUM OPINION * AND ORDER * *

Before the Court is Plaintiffs’ resisted Motion to Bifurcate Nominal Damages/Qualified

Immunity Issue, and to Hold State Defendant’s Summary Judgment Motion on this Issue in Abeyance

(Clerk’s No. 183). By their motion, the Plaintiffs seek a bifurcation under Federal Rule of Civil

Procedure 42(b) on the issues of qualified immunity and nominal damages from the other matters in the

present case. In addition, the Plaintiffs request that the Court hold in abeyance the issues of nominal

damages and qualified immunity until the Court has issued final rulings on the Plaintiffs’ request for

declaratory, injunctive, and restitution relief, reached either by summary judgment or by trial. The

Defendants filed their Joint Opposition on September 27, 2004. Clerk’s No. 187. In turn, the

Plaintiffs filed their Reply on September 30, 2004. Clerk’s No. 188. The matter is fully submitted.

I. ANALYSIS

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be

conducive to expedition and economy, may order a separate trial of any claim . . . or issues . . . .” Fed.

R. Civ. P. 42(b). “In order for a court to grant bifurcation, the party seeking bifurcation has the burden

of demonstrating that judicial economy would be served and that no party would be prejudiced by

separate trials, based on the circumstances of the individual case. See Real v. Bunn-O-Matic Corp., 195 F.R.D. 618, 620 (N.D. Ill. 2000) (citing Novopharm Ltd. v. Torpharm, Inc., 181 F.R.D. 308, 310 (E.D.N.C. 1998)). “The piecemeal trial of separate issues in a single lawsuit is not to be the usual course.” See Bunn-O-Matic Corp., 195 F.R.D. at 620 (citing 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2388 (2d ed. 1995)). “District courts possess broad discretion to bifurcate issues for purposes of trial . . . In exercising discretion, district courts should consider the preservation of constitutional rights, clarity, judicial economy, the likelihood of inconsistent results and possibilities for confusion.” O'Dell v. Hercules, Inc., 904 F.2d 1194, 1202 (8th Cir. 1990) (internal citations omitted).
The Plaintiffs argue that if qualified immunity is not granted to the State Defendants, the State’s likely interlocutory appeal will unduly delay a hearing on the merits of the case because the Circuit Court of Appeals may order a stay of the proceedings until a final determination on qualified immunity is made. Also, the Plaintiffs assert that a full hearing on the nominal damages issue would require calling at least thirteen separate defendants to the stand, thereby lengthening the trial. Through bifurcation and abeyance, the Plaintiffs continue, the Court would be freed from unnecessary consideration of complex legal questions. The Plaintiffs conclude that, in any event, the nominal damages issue may well be resolved between the parties if the Plaintiffs other claims for relief are realized.
Most examples for bifurcation under Rule 42(b) have in common the idea that bifurcation is a practical step, based on a common sense separation of claims or issues for the sake of economically resolving the larger dispute in question and avoiding unwarranted prejudice. See, e.g., O'Dell, 904 F.2d at 1202 (finding no abuse of discretion when the trial court bifurcated a consolidated tort trial
-2-

between a liability phase and damages phase); Koch Fuels, Inc. v. Cargo of 13,000 Barrels of No. 2 Oil, 704 F.2d 1038, 1042 (8th Cir. 1983) (affirming district court’s decision to bifurcate a trial in admiralty in order to preserve one claimant’s right to a trial by the court and the other claimant’s right to trial by jury without prejudice to either party); Int’l Woodworkers of Am. v. Georgia-Pacific Corp., 568 F.2d 64, 68 (8th Cir. 1977) (deciding, in a suit alleging discrimination at several locations, that a district court in its discretion may order the separate trial of alleged discrimination at just one of the sites); Chicago, Rock Island & Pac. R.R. Co. v. Williams, 245 F.2d 397, 404 (8th Cir. 1957) (finding “eminently proper” the trial court’s bifurcation order to try defendants’ cross-claims separately from the plaintiff’s actions on the merits in a tort action).
The burden on the moving party to show that judicial economy would be served through bifurcation is not met, in this case, by the Plaintiffs’ motion set in the subjunctive mood. See Wright & Miller, Federal Practice § 2388 (stating that when “any saving in time and expense is wholly speculative, a separate trial will be denied”). In this case, the Plaintiffs’ primary argument for bifurcation is based on a series of speculative events which, should they happen, could result in an undue delay in litigation. That is: 1) that the Court denies the State Defendants their summary judgment request for qualified immunity (thereby leaving them vulnerable to the nominal damages remedy); 2) the State Defendants then choose to file an interlocutory appeal on the issue of qualified immunity/nominal damages; 3) the Circuit Court of Appeals decides to issue a stay of the proceedings; causing, 4) an undue delay in litigation during the pending appeal. In the cases cited supra, where bifurcation was deemed proper, the concerns and risks inherent in the absence of bifurcation were readily foreseeable and flowed from the natural course of the litigation in the types of cases. In the present case, the
-3-

Plaintiffs’ view into the future requires that the Court agree to bifurcation based on several possible outcomes, none of which flow naturally from the claims or issues, rather the results could only accrue as a result of the parties’ possible tactical litigation or decisions arising from an unfavorable decision by the Court. The scenarios envisioned by the Plaintiffs are too speculative to warrant bifurcation and abeyance of the qualified immunity/nominal damages issues. Lastly, even if these scenarios did come to pass, the only prejudice likely to be suffered by Plaintiffs would be that associated with the Defendants assertion of their procedural rights.
II. CONCLUSION The Court finds that the interests of convenience, avoidance of prejudice, or economy would not be served through bifurcation in this case. For the reasons stated herein, Plaintiffs’ Motion to Bifurcate Nominal Damages/Qualified Immunity Issue, and to Hold State Defendants’ Summary Judgment Motion on this Issue in Abeyance (Clerk’s No. 183) is DENIED. IT IS SO ORDERED Dated this ___19th___ day of October, 2004.
-4-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

IN THE MATTER OF AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, et al.,
Plaintiffs,
v.
PRISON FELLOWSHIP MINISTRIES, et al.,
Defendants.

* * * 4:03-cv-90074 (lead), * 4:02-cv-90447, 4:03-cv-90101 * * * * * * MEMORANDUM AND ORDER * ON CROSS MOTIONS FOR * SUMMARY JUDGMENT *

I. INTRODUCTION A. Factual Background

The primary question in this case is whether the State of Iowa violates the Establishment Clause

of the First Amendment by paying a faith-based, private services provider to run a prison pre-release

rehabilitation program, which, among other things, includes intensive religiously-oriented classes, group

experiences, and counseling sessions. Defendant Prison Fellowship Ministries (“Prison Fellowship”)

and Defendant InnerChange Freedom Initiative (“InnerChange”) have had a contract with Defendant

Iowa Department of Corrections (“IDOC”) since March 24, 1999, for the purpose of establishing and

operating a values based pre-release program within the Iowa prison system. Since the first contract

between IDOC and InnerChange and up until at least September 3, 2004, IDOC has paid

InnerChange $1,111,553.50 in direct payments; the contract has been renewed and extended annually

to the present. The Iowa state legislature has appropriated the payments largely from the Healthy

Iowans Tobacco Trust and the Inmate Telephone Rebate Fund.1 Since June, 2002, the sole parties to the contract have been IDOC and InnerChange.
The InnerChange program was developed and is operated by Prison Fellowship, a Washington, D.C. Christian non-profit organization whose mission is to minister to prisoners, exprisoners, crime victims, and their families. The InnerChange program is a faith-based program designed to transform prisoners into good citizens, to reduce the recidivism rate of current inmates, and to prepare inmates for their return to society by providing educational, ethical, and religious instruction. The InnerChange program is conducted at the Newton Correctional Facility (“Newton facility”), a medium-sized prison within IDOC that houses 875 inmates. At the time of hearing on this matter on October 12 and 13, 2004, approximately 250 inmates participated in the InnerChange program. InnerChange inmates, including InnerChange graduates as well as those waiting to start the program, are housed in Unit E on the Newton facility campus. Currently, Unit E is filled entirely with these InnerChange inmates.2 Building M on the Newton Facility campus is a modular building used exclusively by the InnerChange program, and contains offices, classrooms, a computer room, and a multi-purpose room that is also referred to as the “music room.”
The Plaintiffs are IDOC inmates, their spouses, Iowa taxpayers, and Americans United for the Separation of Church and State (“Americans United”), a non-profit, non-partisan, educational and
1 No federal dollars are involved. 2 The Defendants contend that if the number of InnerChange inmates would drop below capacity, then non-InnerChange inmates would be housed in Unit E. Since its inception, however, the list of persons waiting to enter the InnerChange program has numbered at least 122 and has been as high as 156.
-2-

advocacy organization whose self-described purpose is to preserve the constitutional principle of
church-state separation. The other named Defendants are Terry Mapes, both in his official capacity as
Warden of the Newton Correctional Facility and as an individual; Walter “Kip” Kautzky, former
Director of IDOC; John Baldwin, in his official capacity as former Acting Director of IDOC and in his
individual capacity; other members of the Iowa Board of Corrections in their official and individual
capacities; and Gary Maynard, current Director of IDOC.
B. Procedural Background
Before the Court are the parties’ respective Motions for Summary Judgment (Clerk’s Nos. 96,
100 and 104) regarding the merits of the Plaintiffs’ Establishment Clause claims.3 The Plaintiffs seek:
1) declaratory and injunctive relief that would disallow state funding of the InnerChange program in the
state’s prison system; 2) return to the state of funds paid to InnerChange and Prison Fellowship; 3)
restitution in the form of pro rata refunds from the Inmate Telephone Rebate Fund (“Telephone
Fund”); and 4) a grant of nominal damages.
Both parties also move for partial summary judgment on the issues of Plaintiffs’ standing and the
3 The Plaintiffs also bring two claims under the Iowa state constitution. First, Plaintiffs allege an Establishment Clause claim under the Iowa state constitution which, in relevant part, mirrors the language found in the Establishment Clause of the federal constitution. The second state claim comes under Article 1, section 4, of the Iowa state constitution, which states: “No religious test shall be required as a qualification to any office, or public trust, and no person shall be deprived of any of his rights, privileges, or capacities, or disqualified from the performance of any of his public or private duties . . . in consequence of his opinions on the subject of religion.” Compare U.S. Const. art. VI, § 1, cl. 3 (“The Senators and Representatives . . . and the Members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”)
-3-

qualified immunity of the individually named state Defendants. See Clerk’s Nos. 92, 96, 98, and 104.
Both parties have filed timely memorandums in support of their motions, resistance memorandums, and
replies. In addition, the parties have filed a virtual cornucopia filled with statements of undisputed facts,
admissions, interrogatories, and appendices containing affidavits, expert opinions, and deposition
testimony in support of the respective parties’ positions.4 A hearing on the issues was held on October
12 and 13, 2004, at which counsel for each party offered oral argument. The matter is fully submitted.
II. STANDING
The Defendants challenge whether the Plaintiffs have standing so as to qualify the current
dispute as a case or controversy under Article III of the federal constitution. In order to satisfy the
standing requirements of Article III, Plaintiffs must show:
(1) [they have] suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
See Eckles v. City of Corydon, 341 F.3d 762, 767 (8th Cir. 2003) (following Friends of the Earth,
Inc. v. Laidlaw Env’t Serv. (TOC), Inc., 528 U.S. 167, 180-181 (2000)); see also Allen v. Wright,
468 U.S. 737, 751 (1984) (affirming that a court must also be mindful of prudential concerns, namely,
4 As alluded to above, the discovery process in this case has resulted in a voluminous amount of factual material accompanying the various memorandums and other pleading documents filed by the parties. Counsel for Americans United contends that an extensive record is necessary because the most recent Supreme Court rulings in Establishment Clause cases, in Americans United’s view, hinge on a comprehensive inquiry into the factual record. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 655 (2002) (stating that the “reasonable observer in the endorsement inquiry” must be aware of the “full history and context” of the program being challenged) (citations omitted).
-4-

“the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication
of generalized grievances more appropriately addressed in the representative branches, and the
requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked”).
For the purposes of establishing standing, a court looks to the complaint and accompanying
documentation for assertions that a plaintiff has a stake in the outcome. See Delorme v. United
States, 354 F.3d 810, 815-816 (8th Cir. 2004) (stating that “[g]eneral factual allegations of injury
resulting from a defendant's conduct may suffice at the pleadings stage to meet the injury in fact
requirement for constitutional standing”) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992) (internal citation omitted)). “In response to a summary judgment motion [, however] . . . the
plaintiff must . . . set forth by affidavit or other evidence, specific facts . . . which for purposes of the
summary judgment motion will be taken to be true.” Lujan, 504 U.S. at 561 (citing Fed. R. Civ. P.
56(e)) (internal quotations omitted). The Plaintiffs respond that they have standing as an organization,
taxpayers, inmates, Telephone Fund payers, and as tobacco users, respectively.5 For the reasons set
forth below, the Court finds that all the Plaintiffs meet the constitutional and prudential requirements for
standing.
5 Because the Plaintiffs have met the requirements for standing apart from their status as Telephone Fund payers and former or present tobacco users, the Court need not make an inquiry under those theories. If a constitutional violation is found, however, the shape of the remedy will be crafted according to the specific type of injuries sustained and shown by the Plaintiffs. See Lewis v. Casey, 581 U.S. 343, 351-353 (1996) (distinguishing, in majority and concurring opinions, that impropriety of relief did not turn on standing, but on the failure of plaintiffs to show past or imminent denials of access to prison libraries); Allen, 468 U.S. at 759-761 (reaffirming rule that the focus of standing analysis is the causal link between a defendant’s actions and the plaintiff’s injury; and limiting the holding in Los Angeles v. Lyons, 461 U.S. 95 (1983), which some interpreted broadly to require standing for each specific remedy sought, to its facts on this issue).
-5-

A. Taxpayers
Plaintiffs Carol Delp, Ardene McKeag, Dorothy Redd, and Sandra Sobotka are residents of
Iowa who pay taxes to the State of Iowa and claim taxpayer standing.6 The Establishment Clause
exception regarding taxpayer standing is well-established. See Bowen v. Kendrick, 487 U.S. 589,
6 This may be an appropriate time to raise the standing, or more correctly, mootness, tribulations of Plaintiff Bilal Shukr (a.k.a. Bobby Shelton), who has been the focus of a pleading battle regarding his individual standing as an inmate. See Clerk’s Nos. 172-175, 186, 193, 197, and 201207. Currently, Mr. Shukr, a Muslim, resides at a halfway house within IDOC in preparation for his parole and reentry into society. Defendants argue that, since he is no longer exposed to the alleged unconstitutional activity he seeks to enjoin, his claims are moot. See Lyons, 461 U.S. at 105-106. Plaintiffs counter that Mr. Shukr has violated the conditions of his work release before and, then, candidly state: “[T]here is a significant chance that Mr. Shukr will once again be sent back to prison.” Pls.’ Resp. to State Defts.’ Mot. to Amend Mot. for Summ. J. Regarding Mootness of Pl. Shelton’s Claim, at 2. This assertion is evidently offered to meet the standing requirement that an injury must be concrete or, at least, “imminent,” Eckles, 341 F.3d at 767, or that Mr. Shukr’s injury “is capable of repetition, yet evading review.” See Nelsen v. King County, 895 F.2d 1248, 1254 (9th Cir. 1990) (explaining that “the capable of repetition but evading review” doctrine is an exception only to the mootness doctrine; it is not transferable to the standing context, except in those cases in which a plaintiff possesses standing, but loses it due to an intervening event). While he is actually in prison, as explained below, Mr. Shakr shares the individual standing of the other Plaintiff inmates. While he is in the halfway house program, however, the Court cannot, in good conscience, predicate Mr. Shakr’s individual standing, or the mootness of his of claims, on the likelihood that he will violate the conditions of his release. See Lyons, 461 U.S. at 109 (requiring that “the named plaintiff [] make a reasonable showing that he will again be subjected to the alleged illegality”). The Court, rather, hopes and expects that Mr. Shakr will successfully meet his work-release conditions. To consider Mr. Shakr’s possible future failure as a reasonable expectation, for the purposes of standing, is simply inimical to good policy and the law. See O’Shea v. Littleton, 414 U.S. 488, 497 (1974) (assuming that plaintiffs “will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct”).
It is the Court’s understanding, however, that Mr. Shakr has secured a job with a private employer; in which case, Mr. Shakr is an Iowa taxpayer. The Plaintiffs urge the Court to account for Mr. Shakr’s new standing as a Plaintiff taxpayer. The Court so finds. The Court does not doubt that, if given the choice, Mr. Shakr would much rather proceed as a taxpayer than as a prisoner. In the unfortunate circumstance that Mr. Shakr’s work release is revoked, the Court will revisit his standing to bring suit. Accordingly, for the time being, Mr. Shakr possesses taxpayer standing along with the other taxpayer Plaintiffs.
-6-

618 (1988); Flast v. Cohen, 392 U.S. 83, 106 (1968). In order to meet federal standing requirements, “state taxpayers must only show that there has been a disbursement of tax money in potential violation of constitutional guarantees” to establish standing under the Establishment Clause. See Minn. Fed’n of Teachers v. Randall, 891 F.2d 1354, 1358 (8th Cir. 1989) (announcing the requirements to obtain state taxpayer standing). Nevertheless, the state taxpayer must still show a nexus between the state funds expended and the alleged religious purposes being challenged. See Doremus v. Bd. of Educ. of Borough of Hawthorne, 342 U.S. 429, 431 (1952) (allowing for state taxpayer standing under the Establishment Clause, but denying taxpayer standing because plaintiff offered no actual charge, specification, or proof of the alleged injury); Friedmann v. Sheldon Cmty. Sch. Dist., 995 F.2d 802, 803 (8th Cir. 1993) (finding that plaintiffs had not established standing upon a failure to allege that the state was spending money for religious purposes).
The taxpayer plaintiffs in Doremus and Friedmann are clearly distinguishable from the taxpayer Plaintiffs in the present case. In Friedmann, the taxpayers were not even citizens of the defendant school district, and could make no connection between state funds they supported through taxes and a benediction or invocation at the defendant’s graduation ceremonies. Friedmann, 995 F.2d at 803. In Doremus, the single taxpayer plaintiff actually made no specific allegations at all, let alone allegations supported by evidence. Doremus, 342 U.S. at 431. In the present case, the taxpayer Plaintiffs have shown a direct link between their status as taxpayers and the precise nature of the constitutional violation alleged through their Complaint and exhaustive supporting documents. See Flast, 392 U.S. at 101-102 (holding that taxpayer plaintiffs must show a redressible stake in the dispute). The Plaintiffs have also made a sufficient showing, through supporting documentation in
-7-

response to Defendants’ summary judgment motion, that a significant amount of state-appropriated funds have flowed directly to Defendants InnerChange and Prison Fellowship in the form of salaries, inkind aid, and other materials to provide an intensive, religiously-oriented rehabilitative program for inmates in the Iowa state prison system that, the Plaintiffs allege, seeks to make those inmates into converts of a particular sect of Christianity. The Iowa taxpayers Plaintiffs’ suit, therefore, qualifies as “a good-faith pocketbook action.” Doremus, 342 U.S. at 434; Randall, 891 F.2d at 1358 (explaining that state taxpayers are not “required to show an increase in their tax burdens to allege sufficient injury . . . only [] that there has been a disbursement of tax money in potential violation of constitutional guarantees”).
B. Organizational Standing Americans United bases its standing to bring the present claim under the theory of representational standing. There are three prerequisites to representational standing that, if met, also quell the prudential concern that a party may not litigate another’s legal rights:
First, the members of the organization must otherwise have standing to sue in their own right. Second, the interests which the organization seeks to protect must be germane to its purpose. Third, neither the claim asserted, nor the relief requested, can require participation of the organization's individual members in the lawsuit. See Randall, 891 F.2d at 1359 (following Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)); Associated Gen. Contractors v. Otter Tail Power Co., 611 F.2d 684, 690 (8th Cir. 1979). As noted, Americans United is a non-profit, non-partisan, educational and advocacy organization whose self-described purpose is to preserve the constitutional principle of church-state separation. Americans United has over 75,000 members across the country, including hundreds of
-8-

members in Iowa, who pay taxes to the State of Iowa. The Defendants’ argument as to Americans United’s standing is that, like the other Iowa taxpayer plaintiffs, Americans United cannot show a redressible injury. As discussed above, the Court finds that Iowa taxpayers do have general taxpayer standing under the Establishment Clause exception. To the extent, therefore, that some of those Iowa taxpayers are also Americans United members, Americans United meets the first prong of representational standing. As to prongs two and three, the Court finds that Americans United seeks to protect interests germane to its purpose and that the suit does not require the individual participation of its members. Accordingly, Americans United has standing as a plaintiff in this case.
C. Inmates The inmate Plaintiffs are Jerry Ashburn, Joel McKeag, Byran Chandler, Valentino Whitaker, Kevin Watson, Troy Redd, Robert Engle, Louis Boldon, and Bilal Shakr (a.k.a., Bobby Shelton). With the exception of Mr. Shakr, who is in a half-way house, 7 each is incarcerated within IDOC. Also with exception of Mr. Shakr, all have been inmates at the Newton Correctional Facility and, all except Mr. Shakr, Jerry Ashburn, and Louis Boldon, are still at the Newton Correctional Facility. The inmates assert standing as individuals. As such, they must show, as recited above, that each has suffered an actual injury that can be traced to an illegal action by the Defendants, which can be redressed through the current action. See Eckles, 341 F.3d at 767. Each inmate alleges injury as a result of the unconstitutional actions taken by the Defendants in choosing, funding, and operating the religiously-oriented InnerChange rehabilitation program. Each inmate alleges injury in the form of a
7 See note 5, supra, as to the issues regarding Bilal Shakr (a.k.a. Bobby Shelton). -9-

coercive choice, forced upon them by the Defendants, to either join the InnerChange program and
endure its particular brand of religious training,8 thereby qualifying to receive its benefits, or choose to
remain true to their deeply held beliefs, not join InnerChange, and be denied the benefits enjoyed by
InnerChange inmates.9 The inmate Plaintiffs go on to argue that the coercive choice and discrimination,
to which they are subject, can be redressed by enjoining the InnerChange program from operating
within the IDOC system or, in the alternative, by ordering the establishment of comparable values-
based training for inmates of varying faiths.
The Defendants assert that the stigmatizing and psychological injuries of the inmate Plaintiffs do
not rise to the level required to sustain constitutional standing. The Court disagrees. Noneconomic
injury caused by violation of the Establishment Clause is sufficient to support standing. See Wigg v.
Sioux Falls Sch. Dist., 382 F.3d 807, 813 (8th Cir. 2004) (stating that: “It is beyond dispute that, at a
minimum, the Constitution guarantees that government may not coerce anyone to support or participate
in religion or its exercise, or otherwise act in a way that establishes a [state] religion or religious faith, or
8 It is undisputed that an InnerChange inmate can expect to spend five hours a day in “biblically-based instruction.” Defs.’ App. at 353 (Dye Aff.). In addition, community meetings and devotionals take up about one hour and twenty minutes a day. Id. What’s more, each Friday night a revival is held, and each Sunday, the inmate must attend a worship service. Id. These practices are considered particularly onerous, the Plaintiffs allege, for the Islamic and Roman Catholic inmates who do not share the religious belief system of the InnerChange program and, for whom, undergoing its religious regime would be considered a renunciation of their own faith. Non-believers would also be forced to agree to undergo religious practices in order to enjoy the benefits associated with the InnerChange program.
9 The Plaintiffs allege these benefits include, but are not limited to, early and easier access to classes and treatment programs that fulfill requirement for favorable parole review, better living conditions, guaranteed employment during work release and while on parole, and the enjoyment of other prison facilities not available to general population inmates.
-10-

tends to do so.”) (quoting Lee v. Weisman, 505 U.S. 577, 587 (1992) (emphasis added)). Additionally, injuries caused by discrimination against non-favored individuals have always been considered substantial, despite their psychological and emotional nature. See Heckler v. Mathews, 465 U.S. 728, 739-740 (1984) (“Rather, as we have repeatedly emphasized, discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, Mississippi University for Women v. Hogan, 458 U.S. 718, 725 (1982), can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group. Accordingly, as Justice Brandeis explained, when the ‘right invoked is that of equal treatment,’ the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S. 239, 247 (1931)); see also Valley Forge Christian Coll. v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 487 (1982) (reaffirming the well-established rule that standing can be “predicated on noneconomic injury”).
The Defendants’ arguments against the personal standing of the inmate Plaintiffs take the form of disputing the factual basis for the Plaintiffs’ claims rather than the legality of the Plaintiffs’ basis for standing. The Defendants assert that no Plaintiffs have actually been denied participation in the InnerChange program, that the program is open to all, that Plaintiffs have not chosen to participate because of their “subjective impressions” of the program, and that termination of the program would simply result in the Plaintiff inmates no longer “having to observe conduct with which they disagree.”
-11-

Reply Mem. in Supp. of Defts.’ Mot. for Summ. J. Based upon Lack of Subject Matter Jurisdiction, at 10-11. The Defendants also argue that the inmates are no worse off for not participating in the InnerChange program, i.e., they have not alleged any benefits or privileges accruing from participation in the InnerChange program. The only logical conclusion that the Court can draw from the Defendants’ argument regarding the individual standing of the inmates, is that the Defendants require the Plaintiffs to prove the merits of their case in order to show standing. The Defendants require the Plaintiffs to prove too much. It is enough that the allegations of the Plaintiffs show an actual, redressible injury, and that it is traceable to the Defendants’ actions. The Court finds that the inmate Plaintiffs in this case are not advocating standing based on an amorphous spiritual grievance, but as persons “directly affected by the laws and practices against which their complaints are directed.” See Sch. Dist. of Abingdon Township, Pa. v. Schempp, 374 U.S. 203, 224 n.9 (1963).
As to the existence of remedy, the injuries to inmates through the existence of an allegedly unconstitutional, pervasively sectarian organization operating in a state prison, that is being funded through state tax dollars, can certainly be redressed by enjoining, in some fashion, the unconstitutional activity from continuing. The Defendants argue that this remedy will only mean that the inmate Plaintiffs would still not receive any benefits or privileges, putting them in the same place they are now. If the allegations of the Plaintiffs are true, this is simply not the case. IDOC could, it is imagined, stop all forms of rehabilitative classes and treatments. In such a scenario, unlikely as it may be,10 the Plaintiff inmates would be in the same position they are now, except for one crucial reality. They will no longer
10 Other nonsectarian oriented pre-release classes and treatment programs are offered throughout the Iowa Department of Corrections for qualifying inmates.
-12-

be the target of a coercive state-sponsored religious system that withholds classes and benefits merely because inmates refuse to be indoctrinated into a specific form of religious belief while rewarding those who embrace its views. Freedom from coercive pressure is the bedrock protection of the Establishment Clause. Disallowing such a practice is enough to confer standing. See Heckler, 465 U.S. at 739 (stating that “we have frequently entertained attacks on discriminatory statutes or practices even when the government could deprive a successful plaintiff . . . [by] withdrawing . . . benefits from both the favored and the excluded class”).
The Defendants also attempt, in the standing arena, to invoke the prison context as a factor that precludes the inmates’ personal standing. The Defendants argue that even if some benefits, such as living quarters, are withdrawn from the inmate Plaintiffs,11 this is of no consequence, and thus not an injury, because a prisoner has no interest in being transferred to living unit that may be less desirable. See Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir. 1996) (holding that the plaintiff had no “liberty interest in avoiding administrative segregation unless the conditions of his confinement present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest”) (citations omitted). The Plaintiffs correctly point out that this case is not a procedural due process case, but a case involving another type of protected constitutional right, and therefore is not subject to procedural due process analysis. See Sandin v. Conner, 515 U.S. 472, 487 n.11 (1995) (affirming that prisoners, like the plaintiff, “retain other protection even within the expected conditions of confinement. They may invoke the First and Eighth Amendments and the Equal Protection Clause of the Fourteenth
11 Inmate Plaintiffs Bryan Chandler and Joel McKeag allege, because they did not choose to participate in the InnerChange program because of its particular religious nature, they were moved from Unit E (which now houses the InnerChange inmates) to make room for InnerChange inmates.
-13-

Amendment where appropriate”); Phillips v. Norris, 320 F.3d 844, 848 (8th Cir. 2003) (analyzing prisoner plaintiff’s equal protection claim apart from his due process claims). The inmate Plaintiffs in this case are not claiming violation of a liberty or property interest, but rather a First Amendment interest not to be subjected to state-sponsored religious coercion. The Plaintiffs do not argue an interest in the Unit E living quarters, per se, but an interest in the state not using their living conditions to coerce participation in religious exercises. See Cornell v. Woods, 69 F.3d 1383, 1387 (8th Cir. 1995) (stating that the well-established precept that a prisoner enjoys no constitutional right to remain in a particular institution is limited by the prohibition of taking adverse actions against a prisoner based on that prisoner’s constitutional rights) (citations omitted); DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir. 2000) (stating that if prison officials withheld benefits or privileges from prisoners for discriminatory or illegal reasons, the officials’ actions would still be unconstitutional apart from a prisoner’s liberty or property interests). Accordingly, the Court finds that, as a matter of standing, the inmate Plaintiffs have suffered an injury in fact to the extent living conditions, or any other benefits, were predicated on their participation, as alleged, in state-sponsored religious practices.
For all the reasons set forth above, the Court finds the Plaintiff inmates have adequately shown a concrete and recognizable injury that can be traced to the allegedly unconstitutional actions of the Defendants which can be redressed through an equitable remedy. Accordingly, the Plaintiff inmates enjoy individual standing to bring the present action before a federal court.
III. STANDARD FOR SUMMARY JUDGMENT Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine
-14-

issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if the dispute over it might affect the outcome of the suit under the governing law. Id. The moving party has the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson, 477 U.S. at 248. In meeting its burden, the moving party may support his or her motion with affidavits, depositions, answers to interrogatories, and admissions. See Celotex, 477 U.S. at 323. Once the moving party has carried its burden, the nonmoving party must go beyond the pleadings and, by affidavits, depositions, answers to interrogatories, or admissions on file, designate the specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 322-323; Anderson, 477 U.S. at 257. In order to survive a motion for summary judgment, the nonmoving party must present sufficient evidence for a reasonable trier of fact to return a verdict in his or her favor. Id. On a motion for summary judgment, a court is required to “view the evidence in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences.” See United States v. City of Columbia, 914 F.2d 151, 153 (8th Cir. 1990) (citing Woodsmith Pub. Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir. 1990)). A court does not weigh the evidence or make credibility determinations. See Anderson, 477 U.S. at 252. A court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. Id.
In the present case, both sides have moved for summary judgment on Plaintiffs’ standing and the Plaintiffs’ Establishment Clause claims. Particularly in the presence of competing cross motions for
-15-

summary judgment, a court must keep in mind that summary judgment is not a paper trial. Accordingly, a “district court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe.” Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). In a motion for summary judgment this Court has but one task, to decide, based on the evidence of record as identified in the parties’ moving and resistance papers, whether there is any material dispute of fact that requires a trial. See id. (citing Anderson, 477 U.S. at 249 and 10 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2712 (3d ed. 1998)). The parties then share the burden of identifying the evidence that will facilitate this assessment. Waldridge, 24 F.3d at 921.
Neither does filing cross motions for summary judgment mean the parties have waived their right to trial. See Wermager v. Cormorant Township Bd., 716 F.2d 1211, 1214 (8th Cir. 1983) (“[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits.”) (citations omitted). Rather, for the purposes of summary judgment, a party concedes there are no factual issues and accepts the other party’s allegations only for the purpose of their own motion. See Federal Practice and Procedure § 2720; see also Metropolitan Life Ins. Co. v. Johnson, 297 F.3d 558, 561-62 (7th Cir. 2002) (reviewing the record with “all inferences in favor of the party against whom the motion under consideration is made”) (citing Herdricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)). “Cross motions simply require [a court] to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Barnes v. Fleet Nat. Bank, 370 F.3d 164, 170 (1st Cir. 2004) (quoting Wrightman v. Springfield Terminal
-16-

Ry., 100 F.3d 228, 230 (1st Cir. 1996)). In this matter, then, each motion will be “evaluated independently to determine whether there exists a genuine dispute of material fact and whether the movant is entitled to judgment as a matter of law.” St. Luke’s Methodist Hosp. v. Thompson, 182 F. Supp. 2d 765, 769 (N.D. Iowa 2001). Nevertheless, “[s]ummary judgments in favor of parties who have the burden of proof are rare, and rightly so.” Turner v. Ferguson, 149 F.3d 821, 824 (8th Cir. 1998).
III. MERITS A. Federal and State Establishment Clause Claims The First Amendment, in relevant part, states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I. The First Amendment is applied to the states through the due process clause of the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947) (citing Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943)). The state establishment clause claim will be considered together with the federal constitutional claim under an analysis of federal law. See State v. Biddle, 652 N.W.2d 191, 201 (Iowa 2002) (affirming that though the Iowa Supreme Court is “the final arbiter of the Iowa Constitution, similar provisions of the state and federal constitutions are usually deemed to be identical in scope, import, and purpose”) (citing State v. Boland, 309 N.W.2d 438, 440 (Iowa 1981)). Despite fragmentation of the Supreme Court in Establishment Clause jurisprudence, the parties agree, and this Court concurs, that the law governing Establishment Clause cases still arises from the three-pronged test announced in
-17-

Lemon v. Kurtzman, 403 U.S. 602 (1971).12 See Marks v. United States, 430 U.S. 188, 193
(1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys
the assent of five Justices, the holding of the Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest grounds.”); Erwin Chemerinsky,
Constitutional Law: Principles and Policies 1163 (2002) (counting four Justices on the current
Court – Rehnquist, Scalia, Kennedy, and Thomas – who would abandon the entanglement prong and
all of the Lemon test; counting three Justices – Stevens, Souter, and Ginsberg – who would continue
using the Lemon test as is; and, counting two Justices – O’Connor and Breyer – for whom the Lemon
test faces an uncertain future). Accordingly, the Court will analyze the InnerChange program using the
Lemon test, but with a critical eye to the changing interpretation of its significance.13
12 The Defendants contend, however, that the analysis does not begin and end with Lemon. They argue that, even if a constitutional violation is found using the Lemon test, a court must then proceed to review whether the constitutional violation was “reasonably related to legitimate penological interests,” as determined by the test in Turner v. Safley, 482 U.S. 78, 89-91 (1987). The Court does not agree. In a recent prison case involving allegations of unconstitutional conduct, the Eighth Circuit Court of Appeals applied the Turner analysis to the free exercise and free speech claims, but applied the Lemon inquiry, without comment, for the Establishment Clause claim. See Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 985 (8th Cir. 2004) (finding that prison television network programming aimed to promote freedom of religion by broadcasting a broad spectrum of religious ideas within the prison did not violate the Establishment Clause); see also Scarpino v. Grosshiem, 852 F. Supp. 798, 803 (S.D. Iowa 1994) (stating that the prison context is “irrelevant” for an Establishment Clause claim, because “[t]he ‘exercise’ of Establishment Clause rights differs from the exercise of most other constitutional rights, in that it is in essence a public matter: The inmate is not claiming a right to do something, but rather insisting the institution cannot expend public money to support religion.”). This Court will follow the Circuit Court’s pattern in these types of cases and agrees with the well-reasoned opinion formulated in Scarpino. Accordingly, the Court finds that the Turner inquiry is inapplicable to the present case and that the Lemon inquiry is sufficient to determine the existence of a constitutional violation for which an adequate remedy may be formed.
13 Nonetheless,
-18-

The Lemon test, as applied to this case, asks: 1) whether the governmental practice has a
secular purpose; 2) whether the primary effect of that practice is one that neither advances nor inhibits
religion; and 3) whether the governmental practice creates an unacceptable entanglement of church and
state. Lemon, 403 U.S. at 612-613 (citations omitted); see also Agostini v. Felton, 521 U.S. 203,
232 (1997) (amending the Lemon analysis by conflating prongs two and three: “Regardless of how we
have characterized the issue, however, the factors we use to assess whether an entanglement is
excessive are similar to the factors we use to examine effect. That is, to assess entanglement, we have
looked to the character and purposes of the institutions that are benefitted, the nature of the aid that the
State provides, and the resulting relationship between the government and religious authority.”) (internal
citations omitted). More recent Supreme Court decisions, while not overturning the Lemon test, have
further distilled Establishment Clause analysis to a set of principles that, when applied to the facts in the
present case, reveal genuine issues of material fact that preclude resolution of the present dispute as a
matter of law.
First, the Supreme Court has placed great weight on determining whether the governmental
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
Torcaso v. Watkins, 367 U.S. 488, 492-493 (1961). -19-

practice in dispute is neutral toward religion, i.e., whether the government exercises its authority in a religiously neutral way. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (2001) (citing, e.g., Mitchell v. Helms, 530 U.S. 793, 809 (2000) (plurality opinion), for the proposition that “[i]n distinguishing between indoctrination that is attributable to the State and indoctrination that is not, [the Court has] consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion”)); Schempp, 374 U.S. at 222 (“The wholesome ‘neutrality’ of which this Court's cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits.”); Wigg v. Sioux Falls Sch. Dist. 49-5, 382 F.3d 807, 814 (2004) (“Of utmost importance in Establishment Clause inquiries is whether the government regulation is neutral towards religion.”).
Neutrality is determined “from the perspective of a hypothetical observer who is presumed to possess a certain level of information that all citizens might not share.” See Capital Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 777 (1995) (O’Connor, J., concurring). This “reasonable observer in the endorsement inquiry must be deemed aware of the history and context underlying the challenged program.” Zelman v. Simmons-Harris, 536 U.S. 639, 655 (2002) (citing Good News Club, 533 U.S. at 119 (internal quotations omitted)). “[T]he guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and
-20-

diverse.” Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 839 (1995). Still, a trier of fact is required to determine whether a governmental policy is simply a pretext for a religious purpose. “When a governmental entity professes a secular purpose for an arguably religious policy, the government’s characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to ‘distinguis[h] a sham secular purpose from a sincere one.’” See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (citing Wallace v. Jaffree, 472 U.S. 38, 75 (2000) (O’Connor, J., concurring)).
Looking to the first prong of the Lemon inquiry in this case, an inquiry into whether the process by which IDOC hired InnerChange was motivated by a secular purpose will shed great light on whether the relationship between IDOC and InnerChange is, in fact, neutral. A factual matter over which the parties vigorously disagree is whether the state government engaged in a neutral and above-board selection process for a values-based program service provider, and whether the process still remains open to other service providers. The Plaintiffs argue that the government’s selection process was, and continues to be, mere pretext in order to choose a particular religious provider to work within the prison system. The Defendants counter that the program’s secular purpose is clearly outlined in IDOC’s request for proposal process and included in the selection process is an annual review of any other service provider proposals. Without question, the issue of secular purpose is a genuine issue on which a trier of fact could reasonably base a decision in favor of either party on whether a constitutional violation has occurred. Anderson, 477 U.S. at 250.
Another important constitutional principle at work when applying the Lemon test is whether the participation in the religious program is voluntary, thereby making what appears to be an impermissible
-21-

direct subsidy to a religious institution by the government into a permissible indirect diversion of funds. See Locke v. Davey, 540 U.S. 712, 719 (2004) (“Under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients.”). “‘[I]f numerous private choices, rather than the single choice of a government, determine the distribution of aid, pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment.’” See Zelman, 536 U.S. at 652-653 (quoting Mitchell, 530 U.S. at 810). The choice must not be coerced or influenced in any way by governmental policies, regardless of the seemingly impartial nature of those policies. See Santa Fe, 530 U.S. at 307 n.21 (explaining that the even facially neutral policies must be carefully observed because “the Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions”) (citing Pinette, 515 U.S., at 777) (O’Connor, J., concurring)).
Similar to the neutrality issue, the voluntariness of participation in the InnerChange program is hotly contested by the parties. The Plaintiffs allege a multitude of benefits and privileges14 that accrue to InnerChange inmates that, in effect, coerce non-believer inmates and inmate believers of other religious persuasions to engage in the Christian practices required by the InnerChange program. The Defendants claim that alternative, comparable, non-religious pre-release programs and classes are available to inmates, which make an inmate’s choice wholly voluntary. In addition, the Defendants deny
14 These benefits and privileges include, but is not limited to, ease of entry into classes and treatment programs, extra visitation rights, telephone liberties, post-release job opportunities, less severe disciplinary actions, access to computers, access to the music room and equipment, Unit E living quarters, and designation to the Newton facility itself.
-22-

that any other benefits or privileges, which the Plaintiffs allege exist, actually attach with an inmate’s choice to enter the InnerChange program. Whether the participation in the InnerChange program is voluntary and/or whether the government coerces inmates to adopt a particular belief are factual issues in which dispute which preclude summary judgment.
Yet another well-established principle applied when analyzing a governmental practice under the second and third Lemon prongs, i.e., primary effect and entanglement, is whether a particular provider paid by the government is so pervasively sectarian that no governmental funding of that provider would be permissible. See Hunt v. McNair, 413 U.S. 734, 741 (1973) (“Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in [its] religious mission . . . .”). A court, when considering whether an institution is pervasively sectarian, engages in an overview of the nature and structure of an organization or institution to discern the interplay between its secular and sectarian aspects. See Bowen v. Kendrick, 487 U.S. 589, 621-622 (1988) (admonishing the district court’s conclusory findings and ordering the court, on remand, to consider specific evidence showing an inextricable intertwining between an organization’s secular and religious mission). This overview is case specific. See Minn. Fed’n of Teachers v. Nelson, 740 F. Supp. 694, 714 -715 (D. Minn. 1990) (compiling thirty-six factors considered by majority and plurality opinions in nine Supreme Court cases). The fact specific inquiry into whether an organization is pervasively sectarian, in and of itself, begs a court to not conclude one way or another on a summary judgment motion. See Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 755 (1976) (interpreting Hunt to require a court to determine whether: 1) an organization’s secular activities can be separated from sectarian ones, and 2) “if secular
-23-

activities can be separated out, that they alone [are] funded”). Recently, the pervasively sectarian inquiry has been severely criticized. See, e.g., Mitchell v.
Helms, 530 U.S. 793, 829 (2000) (“This doctrine, born of bigotry, should be buried now.”) (Thomas, J., writing for the plurality). This criticism has led to a lower court debate about whether the pervasively sectarian analysis is still worth considering. Compare, e.g., Barnes-Wallace v. Boy Scouts of Am., 275 F. Supp. 2d 1259, 1269 (S.D. Cal. 2003) (interpreting Mitchell to mean that, no matter how pervasively sectarian a private religious provider, a true private choice program makes government funding legal) with Steele v. Indus. Dev. Bd. of Metro. Gov’t Nashville, 301 F.3d 401, 408-409 (6th Cir. 2002) (affirming the district court’s interpretation that because Mitchell was a plurality opinion in which “no single part of any opinion commanded the support of the Court’s majority,” the pervasively sectarian test, though questionable, is still the law). Unless the parties can disabuse the Court, through trial brief, of the notion that the pervasively sectarian test is no longer good law, the Court will follow the Sixth Circuit’s interpretation and treat the test as still viable. See also Columbia Union Coll. v. Oliver, 254 F.3d 496, 508 n.2 (4th Cir. 2001) (citing Agostini, 521 U.S. at 237, for the proposition “that lower courts should not interpret even seismic shifts in Establishment Clause jurisprudence as signifying that prior Court decisions have been overruled indirectly”); Freedom from Religion Found., Inc. v. Bugher, 249 F.3d 606, 613-614 (7th Cir. 2001) (same).
The Plaintiff, again supported by voluminous documentation, asserts that the InnerChange program is so infused with religion that it is impossible to separate its sectarian from nonsectarian functioning. The Defendants argue, with supporting evidence, that though there are sectarian portions to the InnerChange program, because it is a values-based provider, its governmentally-funded
-24-

nonsectarian functions allow it, nevertheless, to pass constitutional muster. On the issue of the pervasively sectarian nature of the InnerChange program, the Court cannot state that, as a matter of law, the sectarian portions of the program so overrun its nonsectarian functions that governmental funding of the InnerChange program is unconstitutional. Accordingly, the material facts in dispute regarding the sectarian nature of the InnerChange program also preclude summary judgment.
B. State Law Employment Claim The Plaintiffs also allege religious discrimination in employment under state constitutional provisions. See Iowa Const. art. 1, § 4 (“No religious test shall be required as a qualification to any office, or public trust, and no person shall be deprived of any of his rights, privileges, or capacities, or disqualified from the performance of any of his public or private duties . . . in consequence of his opinions on the subject of religion.”). Iowa state claims are examined under the same “analytical framework” as that applied under federal law. See Hulme v. Barrett, 449 N.W.2d 629, 631 (1989) (“Our court has ruled that civil rights cases brought under [the Iowa Civil Rights Act of 1965] will be guided by federal law and federal cases.”) (citations omitted). The Plaintiffs fail to show, however, an actual injury caused by any one of the Defendants upon which relief can be obtained. None of the Plaintiffs, for example, has been refused a job with InnerChange or Prison Fellowship in Iowa. For that matter, no Plaintiff has been personally affected, as a matter of employment, through actions taken by InnerChange or any other Defendant. The Plaintiffs cite to a federal district court decision involving an employment discrimination claim brought against a faith-based provider, but in that case the plaintiff was actually an employee who was fired for violating the employer’s religious purposes requirements. See Dodge v. Salvation Army, No. S88-0353, 1989 WL 53857, at *1-4 (S.D. Miss. Jan. 9, 1999)
-25-

(ruling that the federal employment exception clause allowing religious employment discrimination for religious nonprofit employers does not protect a religious nonprofit employer who, under the Establishment Clause, participates in an unconstitutional relationship with the government).
Even if a Plaintiff had suffered an adverse discriminatory employment action under Iowa law, that person is required to file a complaint, as directed by the Iowa Civil Rights Act of 1965. See Iowa Code ch. 216 (establishing the Iowa Civil Rights Commission and providing statutory remedies for enforcement of basic civil right claims); Thompto v. Coborn’s Inc., 871 F. Supp. 1097, 1108 -1109 (N.D. Iowa 1994) (interpreting Iowa Supreme Court cases to hold that the remedies under the Iowa Civil Rights Act of 1965 are preemptive and exclusive unless claims are separate and independent, e.g., a contracts claim); Vaughan v. Ag Processing, 459 N.W.2d 627, 638 (Iowa 1990) (ruling that the Iowa Civil Rights Act of 1965 preempted other state provisions touching on discriminatory acts in the workplace). Even though the Iowa courts construe the Iowa Civil Rights Act filing requirement liberally, claimants must still at least file a general claim with the Iowa Civil Rights Commission. See Hulme, 449 N.W.2d at 633 (citing Anderson v. Block, 807 F.2d 145 (8th Cir. 1986), for the principle that administrative filing requirements in civil rights actions should be treated liberally to avoid needless procedural barriers). The Plaintiffs have provided no evidence that they have exhausted the appropriate, and quite liberal, administrative requirements under Iowa law. Accordingly, for failure to show an injury in fact and for failure to exhaust administrative remedies, this Court has no jurisdiction over the Plaintiffs’ Iowa state employment law claim. See Iowa Const. art 1., § 4. Defendants’ motion for summary judgment on that state law claim is granted.
-26-

IV. QUALIFIED IMMUNITY
Because the Plaintiffs seek no remedy at law, the plea of the named state Defendants for
qualified immunity in this case is moot. A qualified immunity defense is only applicable to safeguard the
named state Defendants from legal remedies. See Hopkins v. Saunders, 199 F.3d 968, 976-977 (8th
Cir. 1999) (en banc) (“Qualified immunity insulates a defendant from all claims for legal damages, but it
does not shield a defendant from claims for equitable relief.”). The only remedy sought by the Plaintiffs
that could be considered legal in nature is the claim for nominal damages.15 See id. at 977 (affirming the
general rule that a remedy of nominal damages is considered legal, except if awarded to prevent unjust
enrichment or intertwined with injunctive relief). The remedy for nominal damages, in this case, is not
sought to prevent improper disgorgement, but it is almost completely intertwined with the principle
remedy of injunctive relief and, as such, incidental to the primary remedy being sought. A remedy of
nominal damages in this case, therefore, is properly considered equitable. See Hopkins, 199 F.3d at
977 (defining nominal damages as a legal remedy where the court did not grant reinstatement or any
other type of injunctive relief to the plaintiff). Without a remedy at law, the named individual state
Defendants Terry Mapes, Walter Kautzky, John Baldwin, Gary Maynard, Haywood Belle, Frances
Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr., and Donald Tietz may not assert
15 Two of the proposed remedies in this case may be considered restitutional, the return of unconstitutionally appropriated state funds and the pro rata reimbursement of inmate telephone funds. Because these remedies are discretionary they are also equitable in nature. See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 205 (2002) (explaining that “[r]estitution is a legal remedy when ordered in a case at law and an equitable remedy when ordered in an equity case, and whether it is legal or equitable depends on the basis for the plaintiff’s claim and the nature of the underlying remedies sought. For restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant’s possession.”).
-27-

qualified immunity. Their motion for qualified immunity is denied. To the extent InnerChange and Prison Fellowship argue they too should enjoy qualified immunity as state actors (Clerk’s No. 98, n.1), their motion is also denied.
V. CONCLUSION Genuine issues of material fact as to the merits, supported by evidence on both sides, still remain in dispute, which necessarily preclude summary judgment. Particularly, genuine issues of material fact still remain as to IDOC’s past and current process used to select a non-compensated, values based pre-release prison program, the voluntary nature of the InnerChange program, and the question of whether the InnerChange program is pervasively sectarian. The parties have offered affidavits, expert opinion, and depositions supporting their respective positions regarding these issues. While not an exhaustive listing of all the elements the Plaintiffs must prove at trial, the genuine issues of material fact as to any one of these Establishment Clause factors leave the Court no choice but to err on the side of denying summary judgment, on the merits, to either party. Accordingly, for the reasons contained herein, Plaintiffs’ Motion for Summary Judgment (Clerk’s No. 104) as to the merits is DENIED, but as to standing, it is GRANTED. Defendants’ Motions for Summary Judgment Based Upon Lack of Subject Matter Jurisdiction (Clerk’s Nos. 92, 96) is DENIED, but is GRANTED as to the Iowa state employment law claim. Defendants’ Motions for Summary Judgment on the Merits (Clerk’s Nos. 96, 100) is DENIED. State Defendants’ Motion for Qualified Immunity (Clerk’s No. 98) is DENIED. Defendants’ Motion for Summary Judgment Regarding Mootness of Plaintiff’s Shelton’s Claim (Clerk’s No. 172) is DENIED. In order not to waste the parties’ hard work in order to arrive at this juncture in this litigation,
-28-

and because of the importance of the constitutional issue at stake, it is further ordered that a trial will be held as soon as feasibly possible on Plaintiffs’ claim that IDOC’s funding of the InnerChange program violates the Establishment Clause. A scheduling conference will be held at the direction of the United States Magistrate Judge Thomas Shields to set a trial date.
In the interest of economy at trial, the Court strongly suggests that the parties file a joint statement of stipulated facts. See Freedom from Religion v. McCallum, 214 F. Supp. 2d 905, 908913 (W.D. Wisc. 2002) (including facts regarding contractual agreement, selection process, services provided, offender eligibility, and available alternative services).
IT IS SO ORDERED. Dated this ___29th___ of April, 2005.
-29-

 
 File Date: 07/27/2005 Case: 4:03-cv-90074-RP-TJS Americans United, et al v. Prison Fellowship, et al Doc #: 237

p: 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF lOWA
CENTRAL DIVISION

In the matter of

)

)

AMERICANS UNITED FOR SEPARATION

)

OF CHURCH AND STATE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

PRISON FELLOWSHIP MINISTRIES, et al.,

)

)

______D_e_fe_n_d_an_t_s._______________________))

Cases Nos. 4:03-cv-90074-RP-TJS, 4:02-cv-90447 -RP-TJS, 4:03-cv-90 101-RP-TJS

JOINT MOTION/STIPULATION BY ALL PARTIES DISMISSING CERTAIN DEFENDANTS AND PROPOSED ORDER

Pursuant to Federal Rule of Civil Procedure 41 (a)( 1), plaintiffs have dismissed all claims for nominal damages. As a result thereof, all parties jointly move and STIPULATE, and the Court ORDERS, as follows:
All claims against Defendants Walter "Kip" Kautzky, Suellen Overton, Donald Tietz, Frances Colston, and Walter Reed are hereby dismised. Walter "Kip" Kautzky, Suellen Overton, Donald Tietz, Frances Colston, and Walter Reed are hereby dismissed as Defendants in this case.
Further all claims aginst Defendants Terry Mapes, Gary Maynard, John Baldwin, Haywood Belle, Renee Sneitzer, Robyn Mills, and Arthur Neu in their individial capacities are hereby dismissed. Defendants Terry Mapes, Gary Maynard, John Baldwin, Haywood Belle,

File Date: 07/27/2005 Case: 4:03-cv-90074-RP-TJS Americans United, et al v. Prison Fellowship, et al Doc #: 237

p: 2 of 3

Renee Sneitzer, Robyn Mills, and Arthur Neu shall remain defendants in their official capacities only.
Pursuant to Federal Rule of Civil Procedure 25(d)( 1), David Erickson is substituted as a defendant in his official capacity only. No claims are asserted against David Erickson in his individual capacity.

IT IS SO STIPULATED.

By:---+-~~-~_____,__~----=) Dean Stowers, Esq.

Date: Jv~ '2~ ?..::o S

Dean Stowers, Esq. Rosenberg, Stowers & Morse 101 0 Insurance Exchange Building 505 Fifth Avenue Des Moines, Iowa 50309 Phone:(515)243-7600 Fax: (515) 243-0583 E-mail: deanstowers@aol.com Cooperating Attorneys, Americans United for Separation of Church and State Counsel for plaintiffs

Ayesha N. Khan, Esq., Legal Director (appearing pro hac vice) Richard B. Katskee, Esq., Assistant Legal Director (appearing pro hac vice) Alex J. Luchenitser, Esq., Senior Litigation Counsel* (appearing pro hac vice) Americans United for Separation of Church and State 518 C Street NE
Washington, DC 20002
Phone: (202) 466-3234
Fax: (202) 466-2587
E-mail: akhan@au.org I katskee@au.org I luchenitser@au.org *lead counsel
Counsel for plaintiffs

2

File Date: 07/27/2005 Case: 4:03-cv-90074-RP-TJS Americans United, et al v. Prison Fellowship, et al Doc #: 237

p: 3 of 3

t W · By:~a-~./J.)~L}~t!~~Jdc,e__ · H. Loraine Wallace, Esq.

Gordon E. Allen, Esq., Deputy Attorney General

H. Loraine Wallace, Esq., Assistant Attorney General

Special Litigation/Corrections

IOWA DEPARTMENT OF JUSTICE

Hoover State Office Building

Des Moines, lA 50319

Phone: (515) 281-4419

Fax: (515) 281-4209

Counsel for defendants Terry Mapes, et al.

-~

.

5 Date: 1 ( J 7 { O ----~------------------

Brent R. Appel, Esq. 2501 Grand, Suite B WANDRO, BAER, APPEL & CASPER, P.C. Des Moines, Iowa 50312 Counsel for defendants Prison Fellowship Ministries and InnerChange Freedom Initiative
Anthony F. Troy, Esq. (appearing pro hac vice) Robert A. Angle, Esq. (appearing pro hac vice) Megan C. Rahman, Esq. (appearing pro hac vice) Peter A. Gilbert, Esq. (appearing pro hac vice) TROUTMANSANDERSLLP 1111 East Main Street P.O. Box 1122 Richmond, VA 23218-1122 Counsel for defendants Prison Fellowship Ministries and InnerChange Freedom Initiative

IT IS SO ORDERED on this the _ _ day of July, 2005.

Hon. Robert W. Pratt U.S. District Court Judge

3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

IN THE MATTER OF AMERICANS UNITED FOR SEPARATION OF STATE, et al.,
Plaintiffs, v.
PRISON FELLOWSHIP MINISTRIES, et al.
Defendants.

* * * 4:03-cv-90074 (lead), * 4:02-cv-90447, 4:03-cv-90101 * * * * * ORDER NUNC PRO TUNC * *

On page twenty nine of this Court’s Order filed on April 29, 2005 (Clerk’s No. 212), the first

sentence of the final paragraph reads: “In the interest of economy at trial, the Court strongly suggests

that the parties file a joint statement of stipulated facts.” The Court then referred the parties to

Freedom from Religion v. McCallum, 214 F. Supp. 2d 905, 908-913 (W.D. Wisc. 2002), which

included an example for the parties to follow. In its original Order (Clerk’s No. 212) the Court did not

intend to merely suggest, however strongly, that the parties agree to a set of facts surrounding the Iowa

Department of Corrections funding of the InnerChange program, but, rather, intended to order the

parties to do so. This intent is in keeping with the admonition to construe and administer the rules of

civil procedure so as “to secure the just, speedy, and inexpensive determination of every action.” Fed.

R. Civ. P. 1.

Accordingly, the first sentence of the final paragraph of the Order (Clerk’s No. 212) should

read: “In the interest of economy at trial, the Court orders the parties to file a joint statement of

stipulated facts surrounding the Iowa Department of Corrections funding of the InnerChange program.”

IT IS SO ORDERED. Dated this ___30th___ day of August, 2005.
-2-

 
 UNITED STATES DISTRICT COURT IN AND FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

AMERICANS UNITED FOR

)

SEPARATION OF CHURCH AND

)

STATE, CAROL DELP, ARDENE

)

McKEAG and DOROTHY REDD,

)

)

Plaintiffs,

)

vs.

)

)

PRISON FELLOWSHIP MINISTRIES, et )

al.,

)

)

Defendants.

)

CIVIL NOS. 4-03-CV-90074 RP-TJS 4-02-CV-90447 RP-TJS 4-03-CV-90101 RP-TJS
ORDER

Before the Court is Plaintiffs’ Expedited Motion for Leave to Take Two Additional

Depositions and Compel Production of Related Docum ents (Clerk’s No. 251), filed August 23,

2005. A memorandum in support of that motion was filed at the same time, as was a Declaration

of Alex J. Luchenitser, one of plaintiffs’ attorneys, to which were annexed Exhibits A through O

inclusive.

Defendants, State of Iowa, Prison Fellowship Ministries, Inc. (PFM) and

InnerChange Freedom Initiative, Inc. (IFI) filed a Joint Resistance to Plaintiffs’ Expedited Motion

on August 29, 2005 (Clerk’s No. 254). Plaintiffs th en filed their reply brief in support of t heir

motion on August 30, 2005 (Clerk’s No. 255).

The Court conducted a hearing on the pending m otion at the United States

Courthouse, Des Moines, Iowa, on September 1, 2005. Alex J. Luchenister, Heather L. Weaver and

Dean Stowers appeared for plaintiffs; Gordon Allen, Deputy Iowa Attorney General, and Loraine

Wallace, Assistant Iowa Attorney General, app eared on behalf of the State of Iowa; Anthony F.

Troy, Robert A. Angle, Megan C. Rahman and Brent R. Appel appeared on behalf of PFM and IFI.

On April 29, 2005 (Clerk’s No. 212), Di strict Judge Robert W . Pratt filed a Memorandum and Order on Cross Motions for Summary Judgment, granting in part and denying in part those pending motions. Within that memorandum, Judge Pratt set forth a comprehensive recitation of the factual procedural background of this case. That discussion will not be repeated in this order.
It is in the context of Judge Pratt’s order, however, that plaintiffs, in part, seek the expedited relief now at issue.
Stated succinctly, because the parties have exhausted the m aximum number of depositions that the Court has allowed in this case,plaintiffs seek permission to take two additional depositions pursuant to Fed. R. Civ. P. 30(b)(6). One of those depositions is sought from an appropriate person with the Iowa Departm ent of Corrections (IDOC), and re lated to the IDOC’s issuance in 2005 of a Request for Proposal and identified as “RFP # FY05-FY06 Values Based PreRelease Program” coupled with proposed inquiries into related subject areas.
The second deposition sought is of a nonp-arty, Emerald Correctional Management (Emerald), which apparently submitted a proposal to IDOC in June 2005 for a Values Based PreRelease Program. Emerald is located in Scott, Louisiana, located approximately 140 miles west of New Orleans, Louisiana.
Additionally, during oral argum ents, one of plaintiffs’ counsel indicated that in addition to seeking the Rule 30(b)(6) deposition fromEmerald, it “might be necessary” to take the deposition of a former Emerald employee now living in the state of Florida. Because that person is no longer employed by Emerald, any deposition sought would not be pursuant to Rule 30(b)(6); it would require, likely, subpoena of that potential witness in the state of Florida.
-2-

As the result of the 2005 Request for Propoasl issued by IDOC, both IFI and Emerald submitted bids to operate the program. IDOC awarded the contract to IFI. Plaintiffs now want to inquire further of both IDOC and Emerald regarding the bidding process and related issues, and in particular whether the program ming proposed by Emerald was “secular or religious ,” and the amount of time Emerald would be required to “get a program up and running in Iowa if a contract were to be awarded to them (sic).”
Discovery closed in this case on May 21, 2004. S,eCe ourt’s order of April 23, 2004 (Clerk’s No. 87). It is plaintiffs’ contention that subs equent to the close of discovery, and apparently because of the ongoing supplemental discovery responses by the State of Iowa, there are are new factual developments that mandate these additional depositions.
In Judge Pratt’s ruling on cross-motions for summary judgment (Clerk’s No. 212 at page 21), he noted “A factual matter over which the parties vigorously disagree is whether the state government engaged in a neutral and above-board selection process for a values-based pr ogram service provider, and whether the process still remains open to other service providers.” The order went on to state, id., “Without question, the issue of secular purpose is a genuine issue on which a trier of fact could reasonably base a decision in f avor of either party on whether a constitutional violation has occurred.” (citation omitted)
The Court grants in part and denies in part plaintiffs’ motion for leave to take two additional depositions. That part of its m otion seeking to take an additional deposition from an employee of IDOC is granted. This deposition is being allowed in large part because the State of Iowa does not resist the taki ng of that deposition, and in fact notes to the Court that its ongoing supplemental discovery will provide the necessary documents for that deposition.
-3-

The Court denies, however, plaintiffs’ request to take a Rule 30(b)(6) deposition from Emerald. It appears to the Court that the proposed discovery from that organization is based in large part upon a desire by plaintiffs to engage in opinion testiomny that would be highly speculative and conjectural on the part of Emerald. Added to this isthe very subjective nature of the requested discovery from Emerald, in particular seeking Emerald’s own conclusions and opinions regarding whether its programming is secular or religious; and the quality of its programming. The f act plaintiffs might need to take, in addition to the Rule 30(b)(6) deposition from Emerald, a deposition from one of its former employees now located inFlorida, also convinces the undersigned magistrate judge that this could turn into a not-so-limited discovery exercise.
Thus, the request to take two depositions really becom es a request to take three depositions. The specter of additional discovery and further depositions loosm. Trial in this matter is now set for October 24, 2005. That trial date is a firm setting and resulted from the removal of this case f rom the Court’s trial docket approxim ately one year ago to allow the Court to have sufficient time to rule on the parties’ respective dispositive motions.
The fact remains, Emerald is in the context of this motion, a “disappointed” bidder with IDOC. To now open up that subject almost on the eve of trial invites further calamity.
For the same reasons, the Court is denying plaintiffs’ Motion to Compel Production of Related Documents. This portion of plain tiffs’ expedited motion arises from the serving of plaintiffs’ supplemental discovery requests (arising out of new factual developm ents) to all defendants pursuant to Fed. R. Civ. P. 33 and Fed.R. Civ. P. 34, on orabout August 5, 2005, along with a notice of a 30(b)(6) deposition directed to IDOC. See, Exhibit H to the Declaration of Alex J. Luchenister.
-4-

First of all, plaintiffs did not seek leave of Cour t to serve additional discovery requests upon any of the defendants. While the Court recognizes the expedited nature of plaintiffs’ requested relief, there has been no showingthat the ongoing supplemental production of documents by defendants has been in any way deficient.
Plaintiffs simply have moved things out ofsequence, and in technicalviolation of the order of this Court, and the Federal Rules of Civil Procedure.
The Court is satisfied that the taking of a deposition pursuant to Rule 30(b)(6) from Emerald is not designed to lead to the discovery of admissible evidence; it is more likely designed to lead to production of opinion testimony, and to create a scenario in which pretrial management will be thoroughly frustrated. This discovery isnot necessary pursuant to Fed R. Civ. P. 26(b)(1).
The Court also is going to lim it plaintiff’s Rule 30(b)(6) deposition of an IDOC employee regarding these new ly produced discovery m atters to a f ive-hour period. T his is consistent with plaintiffs’ counsel’s declarations in the moving papers that the two proposed Rule 30(b)(6) depositions could be accomplished in one day.
Given the fact that the parties have now briefed and argued substantial factual and legal positions in this case, and are very conve rsant with discovery, a five-hour limit f or this deposition is entirely reasonable.
For the foregoing reasons, Plaintiffs’ Expe dited Motion for Leave to Take Two Additional Depositions and Compel Production of Related Documents is granted insofar as plaintiffs will be permitted to take an additional Rule 30(b)(6) deposition from a designated individual by the Iowa Department of Corrections; it is denied as to plaintiffs’ request to take a deposition pursuant to Fed. R. Civ. P. 30(b)(6) fromEmerald Correctional Management; and it is denied as to Plaintiffs’
-5-

incorporated Motion to Com pel Production of Related Docum ents Pursuant to Supplem ental Interrogatories and Requests for Production of Documents served on defendants on or about August 5, 2005.
IT IS SO ORDERED. Dated this 2nd day of September, 2005.
-6-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA

In the matter of
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, et al.,
Plaintiffs, v.
PRISON FELLOWSHIP MINISTRIES, et al.,
Defendants.

* * * 4:03-cv-90074 (lead), * 4:02-cv-90447, 4:03-cv-90101 * * * * * * * ORDER * *

Before the Court is Plaintiffs’ Motion for Order Requiring Production of Documents Concerning

Defendants’ Inmate and Ex-Inmate Witnesses (Clerk’s No. 313) filed on November 10, 2005. The

Defendants filed a Response (Clerk’s No. 317) on November 14, 2005, which was followed by Plaintiffs’

Reply (Clerks’ No. 318) on November 15, 2005. The Court entered an Order (Clerk’s No. 316) on November 10, 2005, in which it set a phone hearing for November 14, 2005,1 despite stating that

Plaintiffs’ “request appears reasonable given the Defendants’ use of Department of Corrections and

InnerChange records to impeach Plaintiffs’ inmate witnesses during the Plaintiffs’ case-in-chief.” After

considering the arguments contained in Defendants’ Response and Plaintiffs’ Reply, the Court has

determined that no further hearing on Plaintiffs’ Motion (Clerk’s No. 313) is necessary. The Court

considers the matter fully submitted.

In addition to its previous observation that Plaintiffs seem to be merely requesting what was

available to Defendants during Plaintiffs’ case-in-chief, the Court also finds that the late disclosure of most

1 The phone hearing was subsequently postponed until today’s date, November 16, 2005, at 3:00 p.m.

of the Defendants’ inmate and ex-inmate witnesses precluded Plaintiffs from narrowly tailoring their discovery request for the documents they now seek, which are not voluminous in nature. Accordingly, Plaintiffs’ Motion (Clerk’s No. 313) is GRANTED.
Defendants shall produce to Plaintiffs all documents in all Department of Corrections and InnerChange files concerning the inmate and ex-inmate witnesses that Defendants have placed on their witness lists (Scott Foster, Kelly Paul, Robert Robinson, Robert Van Zante, Gary Titus, Jesse Weise, Paul Laughlin, Kerry Guy, Jerome Ambers, Brad Longenecker, Steven Six, and Herman Ronnfeldt). Likewise, if Plaintiffs plan rebuttal and there exist documents that would, as well, aid Defendants in their trial preparation, any and all such documents should be produced.
Defendants shall produce these documents to Plaintiffs by November 22, 2005. IT SO ORDERED. Dated this ___16th___ day of November, 2005.
2

3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

In the matter of:

Americans United for Separation of Church and State, et al
Plaintiffs,

JUDGMENT IN A CIVIL CASE

vs.

Case Number: 4:03-cv-90074 (Lead)

Prison Fellowship Ministries, et al Defendants,

XX Decision by the Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the contractual relationship between the state of Iowa, as managed and directed by the named state Defendants and InnerChange and Prison Fellowship violates the Plaintiffs’ Establishment Clause rights as contained in the Federal and Iowa Constitutions by impermissibly funding the InnerChange treatment program at the Newton Facility.
IT IS FURTHER ORDERED AND ADJUDGED that the InnerChange treatment program is permanently enjoined from further operation at the Newton Facility, or any other institution within the Iowa Department of Corrections, so long as it is supported by government funding. The Director of the Department of Corrections shall make arrangements, within a reasonable period of time not to exceed sixty (60) days, for the removal of InnerChange employees from the Newton Facility consistent with inmate safety and other correctional needs.
IT IS FURTHER ORDERED AND ADJUDGED that the Director of the Iowa Department of Corrections shall order any and all persons associated with the payment of funds under the current contract with InnerChange to cease all payments to InnerChange or Prison Fellowship as of the date of this Order, including those expenses for services already provided in the preceding quarter.
IT IS FURTHER ORDERED AND ADJUDGED that InnerChange and Prison Fellowship are ordered to repay the Department of Corrections the full amount of state funds paid to InnerChange since the inception of its contractual relationship with the Department of Corrections in 1999. Since the program is on-going, that amount shall be no less than $1,529,182.70. InnerChange and Prison Fellowship will not be required to pay the expenses incurred by the Department of Corrections for in-kind support in the form of buildings, utilities, transportation, etc. The Director of the Department of Corrections is further ordered, that of the $1,529,182.70, $843,150 shall be refunded, in pro rata fashion, to the individual Telephone

Funds from which it was taken. The remainder of the recoupment, in an amount no less than $686,032.70, shall be returned to the Tobacco Trust.
IT IS FURTHER ORDERED AND ADJUDGED the injunctive and other equitable relief contained herein be SUSPENDED pending appeal. Fed. R. Civ. P. 62 (c). Notwithstanding this stay, InnerChange and Prison Fellowship shall post a supersedeas bond for the amount of $1,529,182.70 with the Clerk of Court.

Dated this 5th day of June, 2006.

MARJORIE KRAHN, CLERK

By: __Donnell Vance_______________ Deputy Clerk

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

JERRY D. ASHBURN,

)

Plaintiff,

vs.
)
TERRY D. MAPES; KRIS WEITZELL; DENNIS POTTER; SCOTT MILLER; ) MICHELLE DIX; JEFF PANKNEN; BOB COADY; LARRY LIPSCOMB; BRENDA MILLER; INNERCHANGE FREEDOM INITIATIVE PROGRAM; JOHN MATHES; WALTER KAUTZKYi JOHN DOE(S) 1 to 1000; JANE DOE(S) 1 to 1000; and the STATE OF IOWA,
Defendants.

PURSUANT TO ARTICLE VI OFTH~ CONSTITUTION OF THE UNITED
STATES OF AMERICA AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS

COMES NOW, the Plaintiff Jerry D. Ashburn, pro se, with this
Civil Action, pursuant to my rights recognized in the Universal
Declaration of Human Rights Articl 1 to 30, and the International
Covenant on Civil and political Rights Article 1 to 53, are all
invoked for this Civil Action.
Article VI, of the United States Constitution makes the Uni-
veral Declaration of Human Rights and the International Covenant
on Civil and Political Rights, part of the Supreme Law of the Land, for they are Treaties.
PARTIES
1. The Plaintiff, Jerry D. Ashburn, is a prisoner housed at the following address:
#0206577 Newton Correctional Facility 307 South 60the Avenue West P. O. Box 218 Newton, Iowa 50208-0218
2. The Defendants, Terry D. Mapes, is the Warden at the Newton
Correct!onal Facility, (hereafter known as NCF): Kris Weitzell, is the Deputy Warden at NCF; Dennis Potter, is the Security
\

-2-
Director at NCFi Michelle Dix, is the Treatment Director at NCF; Jeff Panknen, is the Unit Manager, for Living Unit B at NCF: Bob Coady, is the Unit Manager, for Living Units C & D, at NCFi Larry Lipscomb, is the unit Manager, for Living unit E, at NCFi Brenda Miller, is the Grievance Officer, at NCFi Scott Miller, is the Deputy Security Director, at NCFi Innerchange Freedom'Initiative Program, is a religious program, in Living Unit E, at NCFi All of the Defendants listed in this paragraph have this Civil Action filed against them in there individual and official capacity, for acts of deliberate indifference committed against the plaintiff Jerry D. Ashburn, when they did violate his rights pusuant to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as shall be shown in this Civil Action.
3. All of the Defendants listed in paragraph 2, can be served with this Civil Action at the:
Newton Correctional Facility 307 South 60th Avenue West
P. o. Box 218
Newton, Iowa 50208-0218 4. Defendant John Mathes, ex-Warden, at NCF, now Waden at the Iowa State Penitentiary: has this Civil Action filed against him in his individual and official capacity, for acts of deliberate indifference committed against the plaintiff Jerry D. Ashburn, when he did violate his rights pursuant to the Universal Declaration of Human Rights and the International Covenant on Civil and political Rights, as shall be shown in this Civil Action. 5. The Defendant listed in paragraph 4, can be served with this
. Civil Action at the:

-3-
Iowa State Penitentiary 31 Avenue G P. O. Box 316 Fort Madison, Iowa 52627-0316 6. The Defendant Walter Kautzky, is the Director, of the Iowa Department of Corrections, has this Civil Action filed against him in his individual and official capacity, for acts, of delibrate indifference committed against the plaintiff Jerry D. Ashburn, when he did violate his rights pursuantto the Universal Declaration of Human Rights and the International Covenant on civil and political Rights, as shall be shown in this Civil Action. 7. The Defendant listed in paragraph 6 can be served with this Civil Action at the:
Iowa Department of Corrections 420 Watson Powell Jr. Way Des Moines, Iowa 50309 8. The Defendants John Doe(s) 1 to 1000, and Jane Doe(s) 1 to 1000, are uknown at this time, and will be added in the future. 9. The State of Iowa is a component part of the Federal State, the United States, and the United States of America and is subject to the treaties herein. 10. The State of Iowa can be served at the:
Office of the Attorney General Hoover State Office Building Des Moines, Iowa 50319
JURISDICTION 11. This Honorable Court has Jurisdiction pursuant to Article VI of the Constitution of the United States of America by way of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights in general.
In specific I invoke my rights recognized at Article 8 of the

-4-
Universal Declaration of Human Rights and Article 2, paragraph 3, subparagraphs (a), (b) and (c) of the International Covenant on Civil and political Rights.
STATEMENT OF CLAIM
12. The Prisoners housed in Living Unit E, (hereafter known as LUE), are all part of a religious program called "Innerchange Freedom Initiative, (hereafter known as IFI), at NCF, these prisoners enjoy the following privileges that are denied myself and all other general population prisoners:
a. The building that they are housed in has the following physical features that do not exist in the buildings that house myself and all other general population prisoners;
b. They are allowed seperate bathrooms from there cell, which myself and general population prisoners are denied;
c. They have a key to there cell door and enter and exit at will, which myself and general population prisoners are denied;
d.They are afforded "big screen" T.V.'s" in there day room, which myself and general population prisoners are denied;
e. They are afforded a music room that is denied to myself and general population prisoners;
f. The prisoners housed in LUE IFI have access to computers and word processing equipment that is denied to myself and general population prisoners;
g. The prisoners housed in LUE IFI have access to food prepard by outside vendors during celebrations that myself and general population prisoners are denied;
h. T?e prisoners housed in LUE IFI are afforded additional ~isiting privileges that myself and the general population

-5-
prisoners are denied; i. The prisoners housed in LUE IFI are afforded religious
worship services with members of there family that myself and general population prisoners are denied;
j. The prisoners housed in LUE IFI are afforded treatment and rehabilitation programs that are certified that is not available to myself or the general population prisoner;
k. The prisoners housed in LUE IFI are afforded Education classes of a higher degree and quality that myself and general population prisoners are denied;
1. The prisoners housed in LUE IF! are afforded free religious articles that are denied myself and general population prisoners;
m. The prisoners housed in LUE IFI are afforded art supplies that myself and general population prisoners are denied;
n. The prisoners in LUE IFI are afforded the oppertunity to do art work that myself and general population prisoners are denied;
o. The prisoners housed in LUE IFI are afforded free phone calls tho there family that myself and general population prisoners are denied;
p. The prisoners housed in LUE IFI are afforded additional clothing that is different from that of myself and general population prisoners;
q. The prisoners housed in LUE IFI are afforded video's made to send home to there families that myself and general population prisoners are denied;
r. The prisoners housed in LUE IFI are given preference for
r
the better jobs at NCF, over myself and general population
~risoners;

-6-

s. The prisoners housed in LUE IFI are allowed musical

instruments that are denied to myself and general population

prisoners;

t. The prisoners housed in LUE IFI are afforded three (3)

ring binders that are denied myself and general population

prisoners.

The prisoners housed in LUE IFI are of every Race, ~ and

Severity of Crime the only commonality between the prisoners

housed in LUE IFI is their participation in a religious program

under color of Authority of State Law and NCF Policy.

The sponsoring and promoting of said religious program "IFI"

by the Defendants v~ates my right to equal protection and equal

access to the law without discrimination whatsoever as protected

by the International Covenant on Civil and Political Rights at

Article 26 which the State of Iowa as a component part of the

united States of America and the Defendants being employee's of

the State of Iowa are all subject to the Treaties mentioned herein

oi as recognized at Article 50

the International Covenant on civil

and Political Rights.

Each Defendant listed in this Civil Action has violated my

rights recognized in Article 26 of the International Covenant

on Civil and Political Rights.

EFFECTIVE REMEDY REQUESTED / DEMANDED

I demand a effective remedy as is required as my right pursuant

to Article 2, paragraph 3, subparagraph (a), (b) and (c) of the

International Covenant on Civil and political Rights.

I request as an effective remedy One Million Dollars ($1,000,000.:

from each defendant.

-7I do reserve the right to amend this Civil Action.

I certify under penalty of perjury that the material facts stated herein are true to and correct to the best of my knowledge.

-3'~day Signed on this

of September, 2002.

Respectfully Submitted By:

• Ashburn
Newton Correctional Facility 307 South 60th Avenue West P. O. Box 218 Newton, Iowa 50208-0218

Attched Hereto: The Constitution of the United States of America, the Universal Declaration of Human Rights and the International Covenant on Civil and political Rights.

APPENDIX
THE CONSTITUTION OF THE UNITED STATES OF AMERICA
We the People of the United States. in Order to form a more perfect Union. ~stab­ Ii,h Justice. Insure domestic Tranquility. provide for the common defence. promote Ihe general Welfare. and secure the Blessings of Liberty to ourselves and our Poslenty. do ordain and establish this Constitution for the United States of America.
Article I
Section I. All legislative Powers herein granted shall be vested in a Congress of the United States. which shaIl consist of a Senate and House of Representatives.
Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, includIng those bound to Service fOr a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six. New Jersey four. Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
The House of Representativ~s shall chuse their Speaker and other Officers; and
shall have the sole Power of Impeachment.
781

Section 3. The Senate of the "!Jni_t~AStates shall be composed of two Senators from each State, chosen by the- Legislature :thereof;· for six Years; and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as eq~ally as ~y be. into ~~.Classes. The Seats of the Senators of the first Class shall be vacated at theiExpiration of the Second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the .sixth Year, so that one third may be chosen every sc«ond Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make tempOrary Appointments until the next Meeting of the~gislature, which shall then fill such Vacancies.
No .Pers.on shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State fOf which he shall be chosen.
The Vice President of the United States shall be' President of the Senate, but shall have no Vote, unless they be equally divided.
The Seriate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments. When siUing for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.
Section 4. The limes, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Leg isIature thereo f; bu t the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
Section 5. Each House shall be the Judge of the Elections, Returns. and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be auLhorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.

. Each House shall keep a Journal of its Proceedings, and from time to time pu the same, excepting such Parts as may in their Judgment require Secrecy; an, Yeas and Nays of the Members of either House on any question shall, at the D of one fi fth of those Present, be entered on the Journal.
Neither House, during the Session of Congress, shall, without the Consent 0 other, adjourn for more than three days, nor to any other Place than that in whicl two Houses shall be sitting.
Section 6. The Senators and Representatives shall receive a Compensatior their Services, to be ascertained byLaw, and paid out of the Treasury of the Ur States. They shall in all Cases, except Treason, Felony and Breach of the Peace privileged from Arrest during their Attendance at the Session of their respec Houses, and in going to and returning from the same; and for any Speech or Del in either House, they shall not be questioned in any other Place.
No Senator or Representative shall, during the Time for which he was elected.
appointed to any civil Office under the Authority of th.e United States, which sl
have been created, or the Emoluments whereof shall have been increased dur such time; and no Person holding any Office under the United States, shall b member of either House during his Continuance in Office.
Section 7. All Bills for raising Revenue shall originate in the House of Repres, tatives; but the Senate may propose or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the Sena shall, before it become a Law, be presented to the President of the United States; If approve he shall sign it, but if not he shall return it, with his Objections to the Hou in which it shall have originated, who shall enter the Objections at large on the Journal, and proceed to reconsider it. If after such Reconsidera!;j.on two thirds of th House shall agree to pass the Bill, it shall be sent together with the Objections, to tI other House, by which it shall likewise be reconsidered, and if approved by t\\ thirds of that House, it shall become a Law. But in all such Cases the Votes of bol Houses shall be determined by Yeas and Nays, and the Names of the Persons votin for and against the Bill shall be entered on the Journal of each House respectively.. any Bill shall not be returned by the President within ten Days (Sundays exceptec after it shall have been presented to him, the Same shall be a Law, in like Manner a if he had signed it, unless the Congress by their Adjournment prevent its Return il which Case it shall not be a Law.
Every Order, Resolution, or Vote, to Which the COncurrence of the Senate anc House of Representatives may be necessary (except on a question of Adjournment: shall be presented to the President of the United States; and before the Same shal; take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Section 8. The Congress shall have Power to lay and collect Tax.l,e:~.s, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and gener-

784

APPENDIX

'al Welfare of the United States; but all Duties, Imposts and Excises shall be uniform ~ilghout the United States;

To borrow money on the cr~t of the United States;

To regulate Commerce, with, foreign Nations, and among the several States, and

,okith the Indian Tribes;

,

To establish'an uniform Rule of Naturalization, and uniform Laws on the subject

of Bankruptcies throughout the United States;

,

" I

I

.. ~

•

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Stan-

dard ofWeights and Measures;

"- 'rr'o provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To Establish Post Offices and Post Roads;

" To promote the Progress of Science and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective Writings and Dis-
coveries;
To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers. and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States and the Accep. tance of Congress. become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines. Arsenals, dock- Yards, and other needful Buildings;-And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

""'. I ........ Uln-
Section 9. The Migration or Importation of Such Persons as any of the States I existing shall think proper to admit, shall not be prohibited by the Congress pria the Year one thousand eight hundred and eight, but a Tax or duty may be impose( such Importation, not exceeding ten dollars for each Person.
The privilege of the Writ of Habeas Corpus shall not be suspended, unless w in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the cer or Enumeration herein before directed to be taken,
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Conunerce or Revenue to Ports of one State over those of another: nor shall Vessels bound to, or from, State be obliged to enter, clear, or pay Duties in another,
No money shall be drawn from the Treasury, but i~ Consequence of Approp
dons made by Law; and a regular Statement and Account of the Receipts and: penditures of all public Money shall be publlshed from time to time.
No Title of Nobility shall be granted by the United States: And no Person hold any Office of Profit or Trust under them, shall, without the Consent of the Congn accept of any present, Emolument, Office, or Title, of any kind whatever, from; King, Prince, or foreign State,
Section 10. No State shall enter into any Treaty, Alliance, or Confederation; gr Letters of Mlmjue and Reprisal; coin Money; emit Bills of Credit; make any Th but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, post facto Law, or Law impairing the Obligation of Contracts, or grant any Title Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties Imports or Exports, except what may be absolutely necessary for executing its spection Laws: and the net Produce of all Duties and Imposts, laid by any State Imports or Exports, shall be for the Use of the Treasury of the United States; and such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, k( Troops, or Ships of War in time of Peace, enter into any Agreement or Compact "" another State, or with a foreign Power or engage in War, unless actually invaded, in such imminent Danger as will not admit of delay,
Article II
Section 1. The executive Power shall be vested in a President of the United Sta of America. He shall hold his Office during the Term of four Years, and, togetl with the Vice President, chosen for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature they:of may direci Number of Electors, equal to the whole Number of Senators and Representatives which the State may be entitled in the Congress; but no Senator or Representati

br Persorf'bolding an Office 6f'Trust or Profit under the United States, ·shall be ap-
'Poirited an' greetor.

f

,I'

"

The EIectors shall meet in their respective States, and vote by Ballot for two Per·

,~o~s.' ?rW?loIP.. o~~ .at ~east sballpo.! ,~.M. Inhabitant of the same State with them-

selves. Arid "they· shall make a List of all the Persons voted for, and of the Number
of Votes for each; which List they~hall 'sign imd'certify, and transmit sealed to the

Seat of the Government of the Unite<i'States, directed to the PrJsident of the Senate.

r- The President of. the Senate shall, in the.Presence of the Senate and House of Repre-

sentatives, open all the Certificates, and the Votes shall then be counted. The Person

having the gr~test Number of Yote.~ ~,hlill be the President, if such Number be a Ma-

ElectorS jority of the whole Number of

appointed; and if there be more than one

an who ·have such Majority, and have· equal Number of Votes, then the House of

'Representatives shall immediately chuse by Billiot one of them for President; and if

no Person have a Majority, the·n frOm the .five highest on the List the said House

shall in· like Manner chuse the President .But in chusing the President, the Votes

shall be taken by States, the Representation from each State having one Vote; A quo-

rum for this Purpose shall consist of a Member or Members from two thirds of the

States, and a Majority of all the States shall be necessary to a Choice. In every

Case, after the Choice of the President, the Person having the greater Number of

Votes of the Electors shall be the VIce President. But if there should remain two or

more who have equal Votes, the Senate shall chuse from them by Ballot the Vice

President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In case of the removal of the President from Office, or of his Death, Resignation or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shaH act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Of-

lice OI r:re~llJ~myI u~e unnea ;:nates, ana Will to the best of my Ability, pre \lrotect and defend the Constitution of the United States."
Section 2. The.President shall be Commander in Chief of the Army and Ni the United States, and of the militia of the several States, when called into the Services of the Uni\ed States: he may require the Opinion, in writing, of the 1 pal Officer hi ·uchof the Executive Departments, upon any Subject relating Duties of their respective Offices and he shall have Power to grant Reprievi Pardons for Offenses agalnst the United States, except in Cases of Impeachmel
He shall have Power, by and with the Advice and Consent of the Senate, to Treaties, provided two thirds of the Senators present concur; and he shall non and by and with the Advice and Consent of the Senate, shall appoint Ambass other public Miirlsters and Consuls, Judges of the supreme Court, and all othel cers of the United States, whose Appointments are not herein otherwise pre for, and which shall be established by Law; but the Congress may by Law vc Appointment of such inferior Officers, as they think proper, in the President in the Courts of Law/or in the Heads of Departments'. .
The President shall have Power to fill up all Vacanciis that may happen duril Recess of the Senate, by granting Commissions which shall expire at the E their next Session.
Section 3. He shall from time to time give to the COllgress Information I State of the Union, and recommend to their Consideration such Measures as he judge necessary and expedient; he may, 011 extraordinary Occasions, convene Houses, or either of them, and in Case of Disagreement between them, with Rc to the Thne of Adjournment, he may adjourn them to such Time as he shall proper; he shall receive Ambassadors and other public Ministers; he shall take that the Laws be falthfully executed, and shall Commission all the Officers ( United States.
Section 4. The President. Vice President and all civil Officers of the U States, shall be removed from Office on Impeachment for, and Conviction of, son, Bribery, or other high Crimes and Misdemeanors.
Article III
Section 1. The judicial Power of the United States, shall be vested if supreme Court, and in such inferior Courts as the Congress may from time to ordain and establish. The Judges, both of the supreme and inferior Courts, hold their Offices during good Behaviour, and shall, at stated Times, receiv their Services a Compensation, which shall not be diminished during their Cor ance in Office.
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, ing under this Constitution, the Laws of the United States, and Treaties mac which shall be made, under their Authority;-to all Cases affecting Ambassa other public Ministers and Consuls;-to all Cases of admiralty. and maritime. diction;-to Controversies to which the United States shall be ;Party;-to Cc

versies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State cla.;ming Lands under the Grants of different States, and between a State, or the Citizens,thereof, and foreign States, Citizens or Subjects.
In ell CaSca affecting Ainbassadors, other public Ministers and Consuls, and ~ose
in which a: State 'shell be a Party, the supreme Court shall have original Jurisdiction,
In all ;the'other Cases before' mentioned, the supreme Court shall have appellate Jurisdiction',lboth:a:s to Law'andPact, with such'Exceptions, and under such Regulations as the,CongrenshalJ make.

in , 'The'trid'orill CrimeS," except in Cases of Impeachment, shall be by Jury; and
su'ch'Trilii's'hau'belleJd "the State where the said Crimes shall have been commit-
~:d; 'but w~,en' 'neit conlrirltieO within' any State, the Trial shall be at such Place or

Places as the'COil.gress'may'bY taw hilVe direCted.

~rl: ,':','3 . .~~J\.

.

/

I

. ~l '1'

.

Section 3. Troasqn against the United States, shall consist only in levying War

agaiiisi them: or, in ainiering'to,lheir Enemies, gi~ing them,Aid and Comfort, No

Person shall be convicted of Treason unless 011 the Testimo~y of two Witnesses to

the si!rii6:oveit A~t, oron Confession'in open Court.

.' The . ""fi"l .. ~n1.,. 1-"

-I J

..'"

I ','

,

Congrus shall h'ave 'Power'to deClare the PUnishment of Treason, but no At-

tainder of Treason shall work COrruptiOIl of Blood, or Forfeiture except during the

tif~'or~'PefS'on attainted.

~ 'I r '

:~.~. [," r - .,': '.:

J' i'~ :•.

,}

Article IV

')' Sectton' '1: ;Full Faith' and Credit shall be given in each State to the public Acts,

Recor'ds;l'iind!jiidiCiaITProCeedingsof every other State. And the Congress may by

genei'al'taWi;'pri!scril:ieithe'Manller in which such Acts, Records and Proceedings
's~ail be'pf(Nea,~'sJid 'the' Effect thereof.

Section 2. The Citizens of each State shall be entitled to all Privileges and Im-

muilftieil>o'(CitlZeils' in-the' several States.

, ~ l l'; H(';~ ,; "rv' " ·. . 'I'~

:

A Person' cbiligw'in"any State with Treason, Felony, or other Crime, who shall

flee from Justice, and be found in another State, shall on demand of the executive

Authority of the State from which he fled, be delivered up, to be removed to the

State havin~ Jurisdi~~pn of the Crime.

,rJ ~~ \ •. _ .... ~:~., -_", ,J t~ ."

'.

, "No ,Peq,oo heJ,d to Service or Labour in one State, under the Laws thereof, escap-

ing,iJJtol,llO.QthCr. shall, in Con'sequence of any Law or Regulation thereill, be dis-
charged .n:OJO ~\lch Service or Labour, but shall be delivered up on Claim of the
Party, to \iitlom,~i.rch Service or Labour may be due.

Section 3. New States may be admitted by the Congress into this Union; but no
new Statq,.~t1all,beJo~ed or erected with the Jurisdiction of anY,other State; nor any State,~,fo~ bY.,th¢ Junction o,f two or more States,or,Parts of States, without the CPIl~AtQfJ U1C,J&gisl~es of the States concerned as well as of the Congress.

, The'eijtigress:shall have Power to dispose of and make all' needful Rules and Regulations ,tespec'tingth6' Territory' or other Property belonging to the United States;

and nothing in this Constitution shall be so construed as to Prej udice any Claims of the Uni ted States, or of any particular State,
Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence,
Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Appllcatlon of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Consti tution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which,may be \ made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its consent, shall be deprived of its equal Suffrage in the Senate,
Article VI
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Article VII
The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifyi ng the Same,
ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION.

- - - - - - - - - 11.-' _ ..... J

Congress shall m~e no law respecting an establishment of religion, or prohibit-

ing the free' exercise thereof; or abridging the freedom of speech, or of the press; or

the riglit 'bf 'the people' peaceably to assemble, and to petition the Government for a

reMs's ~f gflevances, , ':" " ,

,

,

otherwi se re-examined in any Court of the United States, than according to the rul es of the common law,
Amendment VIII [1791]
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual puni sh ments inll icted,

Amendment II [1791]

Amendment IX [1791)

A wen regulated Militia, being necessary to' the security of a free State, the right

lb to 'of the pea'ple p and bear Arms, shan not be infringed,

"

" ' ';0, i ' ;t~ !

' ' ,;', "

' ,

.

" ,,t, '.'~::,,:,: ,j" ",l '",', Amendment ill [1791J

'. :"

.r "t';, 1'./:;:,' ,L. ,i:,.t . . • " ,J ,. : ' 1

No So~i¥ef s~" iQ ~~ of pe~ce ~e guartered in any house, without the consent

of.th,e, O~er, n~ ~ ~eof,war, but.in a manner to be prescribed by Jaw,

I,"

,,::

' ' " "Amendment IV [1791]

'~ II'

'I

,J'he:ri~t'bf,thepeople to be secure in·their persons, houses, papers, and effects,

agalnst:~nable searches and 'seizures, shall not be violated, and no Warrants
stall·~su~,: but u~n probable cause, ~up'pP~ by Oath or affirmation, and particu-

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,
Amendment X [1791]
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,
Amendment XI [17981
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State,

larly describ.ing the place to be, searched, and the persons or things to be seized,

, ' , '. ,:" :;,'l;w) '" I " .:;Jfrjl't"r('i~~,.-.,ht-~ "1·"+-'1' :I,~ ",

,

'Amendment V [1791]

No person shall be held to answer for a capital, or otherwise infamous crime, un-

.,

le~ o,~ .!H?~n~~t, p,~ kJdictment of a, Grand Jury, except in cases arising in the landior~hiiVai,foi.ctsi,or'in:theMilltia, when in actual service in time of War or pub-
li;~e~1MIt~han;anY:Person be'subject for the same offence to be twice put in
jed'para)kBf llf&"'of Umb;'nor sliall be compelled in' any criminal case to be a witness
:~g~t ~if, 'nor be deprived of life, liberty, or property, without due process of

iaw; 1Ior'!SilaItprivate property be taken for public use, without just compensation.

,.. .. t" .,,:'~:,~".-

,l~'~;\
,."" ,

'v-::,
.

Ir"t'
'

'_:'; j"
""",i"''

,
~'~U..:l. en

dIn" e

n

t

V

l

[

1

7

9

1

]

""«~~fn' '_;, ,~~\:'-:I£':l!":~'~\ ~'II,

" " , '-,

"

:, In all &milii3J.'ptosecu'!ions, the accused shall enjoy the right to a speedy and pub-
an lic triBl, bY' imp~al juryoi the Stat~ and district wherein the crime shall have

'been'~mmf~, which di~tri~t shal~pav~ qeen previously ascertained by law, and to

, "

'

"): ",Jl

","

,be infonned of.thc,nature and cause of the accusation; to be confronted with the wit-

'n~~~ehil~~r~\!tc;Cg~V~ii~fljpul~o'ry'pr6Cess for obtaining witnesses in his favor,

,
I!l1d

'
to

h'a"Y, ~"b,ii1lJA#~As'}1~;1ti~~nn.cLie:nt!t;~if'1O";Jun'sJell'~fo" r

"
his

'

J';, '

defence,

,; 'i J ~':, ,':u:,) ,"i!'i :,,) 'T;"''Am'endment vn [1791J

y n .',?,Z~~;lr)r;-rO~}'

~:, l~,tl~(~~\'- ," I! '. 'tIl '1 1

,),~'')l#ts(}I:~fOIWll!?n law; ~here.,th,e value in cOI1troversy shall exceed twenty dol-

lars, the·~t.oftrial ,byjury, shalt be preserved, and no fact tried by jury, shall be

Amendment XII [1804]
The Electors shall meet in their respective states and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-The President of the Senate shaJi, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice, And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them before the fourth day of March next following, then the Vice President shall act as President, as in the case of the death or other constitutional disability of the President.-The person having the greatest number of votes as Vice President, shall be the Vice President, if such number be a majority of the whole number of Electors appointed, and

II no person nave a maJ0nty, men trom me two highest numbers on the list. the Sen· ate shall choose the Vice President; a quorum for the purpose shall consist of two· thirds of the whole numberof Senators. and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of Pres· ,ident s~1 be e~gible¥) that of Vice President of the United States.

Amendment XIII [1865]

Section I. Neither slavery nor iriv'oluntary' servitusie, except as a punishment for crime whereof the party, shall, have been duly convicted, shall exist within the United . ,'States, or anyplace subject tcitlieir junsdiction,

Section 2. Congress shall have power to enforce this article by appropriate legislation.

L:,~ ;_
,

,:J0~ .. i}

Amendtnent>OrV[1868]

Section l:'AIl'Pe~onslbom'6r natilniliZed in the United States, and subject to the

jurisdiction thereof, are Citi~ns)o'f .the':Umted: States and of the State wherein they

.~~i~~.. ~? ,S~J~~. ~r entorce any, .lll-!" which shall abridge the privileges or
j~¥~~~J~~..I?f~gl.~p~, o~ t;Ie:P.Dt~ :,~~tes; (it:c:r sh~ any State deprive any person of
,lif~;'libCrty;' or .e1'9'~~"lwitliqut'due ptiicessoflilw; rior deny to any person within
,'its: jurisdictilS'n' llie'eq'liaf pro'&&io~ of theiaws. '

! -"

"

~

~,{)h ~ " l l : ' 'I

.J

Section 2. Representatives'shilll be apportioried among the several States accord·

ing.to~eir i'cspectiv~,'numbers;:counting the whole number of persons in each State,

':, eJ\.gl,u9ijlg:'¥l~;n:ot taxed. !'Bl.)t.,when the 'right to vote at any election for the

"?,;, ,cllorc&of,eIeCuiis'for:,PlCsident>and Vice'President of the United States, Representa·
i&~~"iJl:d6hgreSsi;lli~lE~uve,and Judicial'officers of a State, or the members of 1tli~'!&gislatuii~ereOf;'is'deniedito any'of the male inhabitants of such State, being

r-twenty-onC'.y~ofdige;'and_citizensof,the -United States, or in any way abridged,

,~cxcept for participiltionin'ccbellion;lor other crime, the basis of ccpresentation there·

,id;shaU be: reduced in: !lie, proportion which the number of such male citizens shall

,bcarto ·the whole nUmber'Qf male' citizens ,twenty-one years of'age in such State.

J~;"J~~,~i>~ ?:,){~ ~~~:~~~l,"~f::~'~'~~at~r'9r p.eprese~tative in Congress, or elector
ql~.s!d.eri~#d 'i{fCe.~'~,ldent"or ~old any offi9C, civil or military, under the Unit·
'wno , t?: an 'i\~We~,C'a~:,;~eq(~Sn"n.W"f~e{":-~sI'~~"~t/.'.~•~}\t'o~ f'~.·0fujallD~s'.{~,tljIa·O~Yf'n'.Ja~lNnn~nff~.'..i~fY?J.'ji;En~S~,~ftJ,iir~rio.r~tfbnr0,'rJ1W/'!'i?''i.~.a..,pl~hlr;-i~ubfr,tfaij¥l")cv,I..~u~tg.la',rptfi,e,i!~v,I~,li!o~'yo"usr."s~'altSYe,,aia,tI~ko,.ee"snm)bJPe~r. o~,aoIt,fth'h.a~enaCys.oSantmasttl.eetmul,teblgoel•nrslo0a-ff

;&kiis- HtJllsc" ",Jfffuilne~p,~n~,er~o.~~f~eI.,Ua.dc,~/h:~~;'rr.;'cln;o~i'i,lCi'~f'?;~~)~i~p'~,opv'~:icvlii~,'~.~Ju.l~.d~i,JiRIIH'~Jd~lei.~sJ~ea'~:sb:iItflhii,et~ry~e.~o'ufr..r'eBctultoCn oonr'grreej)sesllmlOany

agamst the by a vote o

same, f two-

~rl SeCtion 4;' Therviilidi~,ofthe public debt of the United States, authorized by law,

includirig,debts linCilrredlfor ,payment 'of< pensions and bounties!for services in sup-

pre~sirll insllI'tcCtioil '00 re~llion.:shallnot .be questioned. But neither the United St'itesbor'-B.nyrStlitc:~ assUme-or pay 'any debtor obligation incurred in aid of in-

i~urreCtion or-rebellion.'ilgainsl'the:United States, or any claim for the loss or emanci·

pall un Ul any Slave; but all such debts, obligations and ciai ms shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article,
Amendment XV [1870]
Section 1, The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color. or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XVI [1913J
The Congress shall have power to lay and collect taxes on incomes, from whatev, er source derived, without apportionment among the several States, and without regard to any census or enumeration.
Amendment XVII [1913J
(1] The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof. for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
(2] When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fiJI such vacancies: Provided, that the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
[3] This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
Amendment XVIII [1919]
Section 1, After One year from the ratification of this article the manufacture, sale. or transportation of intoxicating liquors within. the importation thereof into, or the ex p0 rtation thereof from the United States and all terri tory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce th is articIe by appropdate legislation.
Secti0 n 3. This article shall be inoperstive unless it shalI have been ralifled as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

[I] The right of citizens of the U nl tea :states lU y",,, ~u,," ,"v, ~~ - - .-- -abridged by the Unitc<! States or by any State on account of sex,
[21 Congress shaH have power to enforce this article by appropriate legislation,

Amendment XX [1933]

Section 1. The terms of the President and Vice President shall end; at noon IOn the 20th d1l'y of Jailuary, and the:'terms'of Senators and Representatives at noon on the 3d day of January. of the years in which sucR terms would have ended if this article
had.~o~ ~n ratiiie;d: an4.the terms of their successors shall then begin.

Section 2. The Congress shall wemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law ap-

point a different day.

' ." i

.

. "Seftion"3~' If'; iii th~ tiiUe' fixed for 'the beginning of the term of the President, the

PresiiiCnteleCt shall'have died, the Vicci President eleCt shall become President. If

the his

tPerreDis~idoernitfsthhaellPnreostidheanvet

~beecetn,schhaollsehnavbeeffeo,rileedthteo

time fixed for the beginning of qualify, then the Vice President

. elect sliall act as President Until a Pi-esiden't shall have qualified; and the Congress

may dent.:beyl]elcatwIK"hparlol.vhlad.eV:~fqoura1lhifeieCda,s:edewclhareirneginwnheoitshhearllatPherensiadcet nats

elect nor a President,

Vice Pres!' or the man·

ner.inrwbichiOlle.who,is to.-act shall-pc selected.: and such person shall act according·

Iy until a President or Vice President, shall have qualified.

te"hSY~~e~~q'ptirnposng~Ahmt.,::;pTwfhh,ep*mCo:ioctnegh'sreehHsasollum~savyere,bodyfelvaRowelvpperdreosuevpnidotaentiftvoheresmthm.eaaycnadcshefooorofsthetheaecPadrseeeastiohdfeotnhfteawndhyeeaonthf·
o(iany:;Q.filhe;pcrson.s from whom.the Senate may choose a Vice President whenever

the rj.ght of choiCe'shall have devolved upon them.
':; $~~q" S,.,~Ccti~~s 1 and 2 shall take effect on the 15th day of October following

the ratification, of: ~,~ ,1uticle.

amSee~, 'cdtimoe.n~n6t.

This article s~1 ,be·in!lperative unless
to the Constitution by the legislatures

it shaH have been ratified as an of three-fourths of the several

S~;within seven'years from the date of its submission.

:;<J "It. ,)',::.;" ;':, ' ., . . ·1l'4 '. ,"1"( ."',: . • '1~ (0..: \ ~, I,,': ~ • Ie 1

~en. d.ment XXI [1933]

-,

'

. Sectipp J, The eighteenth article 'of amendment to the Constitution of the United

. ~,~~i~~o~:~,~Po!~'Pn"'tRY2-,...ffiTfYwh1,eW~C~.~fpt\aot;re'stnfa'ot~\i.;¥o,.nli~o.re~'i:m.opfo~rsteatitohne~ienitnooafniyntSotxaitcea,tTinegrrliitqouryo,rso, rinpovsisoelsa··
. ,,~.?],?,~ lf~)a'fs ,~ereof, i~ hpr~1?,y piollibited.
'.';'1 Sectiol'l,31 'Thislarticle shall be inoperative unless' it shall have been ratified as an amendinent to the Constitution by conventions in the several States, as provided in

Amendment XXII [1951J
Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article~~all not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the reo mainder of such term.
Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three·fourths of the several States within seven years from the date of its submission to the States by the Can· gress,
Amendment XXIII [1961]
Section 1, The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Repres en tatives in Congress to which the District would be en titled if it were a State, but in no event more than the least populous state: they shall be in addition to those appointed by the states, but they shall be considered, for the pur· poses of the election of President and Vice President, to be electors appointed by a stale: and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXIV [1964]
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice Pres· ident, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of fallure to pay any poll tax or other tax,
Section 2, The Congress shall have power to enforce this article by appropriate legislation,
Amendment XXV [1967]
Section 1, In the case of the removal of the President from office or of his death or resignation, the VIce President shall become President.

~_ _ _ _ _ _ _

• _____"

_.0 ___ ....._ .....- ..................... ~~~.....

T ........... ~ ...... .;I'~ ........... u~. ~ll"'"

President shall nominate a Vice President who shall take office upon confinnation

by a majority-vote of both Houses of Congress.

at

Section 3. Whenever the President transmits to the President pro tempore of the

Senate and the Speaker of the House of Representatives his written declaration that

he is uqable to discharge tlhe powers and duties of his office, and until, he transmits
to Uie.l,'Il~ ~ written decl ara~0 n to the contrary, such powers and duti es shall be dis-

char~y the Vice'President as Acting President.

2(

, S~WiJ.:'4. ~e;I\~ver tlhe Vice President and a majority of either the principal offi-

3<

~:9f.the ~ecutive departments or of such other body as Congress may by law

hi

Pfovide, ,~mit ,to tlhe President pro tempore of tlhe Senate and the Speaker of the

House of R~presentatives, their written declaration tlhat the President is unabIe to

II

discharge the powers and duties of his office, the Vice President shall immediately

P'

aSsiline'tlhe powers and duties of the office as Acting President.
,. 'Thetea:~~: ~h~n; 'Ilie President transmits to tlhe President pro tempore of the Sen-

P

ate'anifthe Speater of the House of Representatives his written declaration that no

tl

inability exists, he shall resume tlhe powers and duties of his office unIess the Vi ce

IT e:
0

of President and a majority of either the principal officers of the executive department
or' such otlher body as Congress may by law provide, transmit within four days to
thblPds'dent pro tempOre of the Senate and tlhe Speaker of the House of Representa-

d

tives their written declaration tlhat the President is unable to discharge the powers

n

and ,duties, of his office, ..Thereupon Congress shall decide the issue, assembling

l~

witlhin forty-eight hours for that purpose if not in session. If the Congress, within

twenty-one days·.after receipt of the latter written declaration, or, if Congress is not

in'~ession;, within twenty-one 'days after Congress is required to assemble, deter-

tl

mineilby ,t\\:e;-thirds, vote of both Houses that tlhe President is unable to discharge tlhe

e

powers' and'dupes of his office, the Vice President shall continue to discharge the

0

same as Acting President; otherwise, the President shall resume the powers and du-

tl

ties of his office.

Amendment XXVI [1971]

r

Ii

Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any

Ii,

State'on' aceoun( of age.

I!

.' 'S'&ti'6~ i.'TIle Co~gress shall have power to enforce this article by appropriate

legiSliition.

.

J • • I

• ~ .'

Amendment XXVII [1992)

,,;No J,.aw, varying, ~e compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

t

Pron unciation Guide

a for nilihe l'01l'cI sOlillds II! amok, but, fungibles. burden
a as ill fact, pia t ah as in balm, father ahr as in bar, start air as in flare, lair aw IlS in tall, law ay as ill page, same b as in balk, rob ch as in chief, breach d as in debt, docket e as in leg, tenant ee as in plea, legal eer ns in mere, tier er as in merit, stationery
a~ in fa ther, off g n~ 111 go, fog h as ill hearsay, hold hw os 111 whereas, while i ns In risk, IIltent I ns III crime, idle j as in jury, judge k as in kidnap, flak
as in lawyer, trial

m nS!II motion, malice n n, 111 notice, negate ng m; ill long, ring a as ill contract, loss oh a, /11 oa th, impose oi ns in join, ploy 00 ns ill rule, school oar ns ill lure, tour or ns ill board, court ow 115 ill allow, oust p as ill pe~ury, prize r 11.1 ill revolt, terror s as ill sanction, pace sh liS in sheriff, l1ash t as ill term, toxic th ns ill theory, theft
1h as ill there, whether
lIU 0.' III look, pull
\' ns m vague, waiver w y ns ill year, yield
z ns ill zoning, maze
zh

Universal Declaration of Human Rights
Adopted and proclaimed by General Assembly reso 217 A (III) of 10 December 1948
PREAMBLE
Whereas recognition of the inherent integrity and of equ<l inalienable rights of all- members of the human family is {he i
. dation of freedom,.justice and peace in [he world,
Whereas disregard and contempt for human rights resulted in barbarous acts which have outraged the conscien mankind, and the advent of a world in which human beings enjoy freedom of speech and belief and freedom from fear want has been proclaimed as the highest aspiration of the com people,
Whereas it is essential, if man is not to be compelled to recourse, as a last resort, to rebellion against tyranny and oPI sion, that human rights should be protected by the rule of la\l,
Whereas it is essential to promote the development of frie relations between nations,
Whereas the peoples of the United Nations have in the Ch; reaffirmed their faith in fundamental human rights, in the dig and worth of {he human person and in the equal rights of men women and have determined to promote socizJl pn')grcs\ Jnel be standards of life in larger freedom,
Whereas Member States have pledged themsejvn [0 Jdll' in cooperation with the United Nations, the promotion of uni sal respect for and observance of human rights and fundame freedoms,

Whereas a common understanding of these rights and free. doms is of the gi-eatest importance for the full realiZation of this pledge,
Now. therefore. The General Assembly.
Proclaims this Universal Deci3ratlon of Human Rights as a common standard of achievement for all peop'es and all nations. to the end that every individual and every organ of society. keeping this Doclaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to socure their universal and effective recognition and observance. both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Article 1
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2
Everyone is entitled to all the rights and freedoms set forth in 'this Declaration, without distinction of any kind. such as race. colour, sex. language. religion. political or other opinion, national or social origin. property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or ter. ritory to which a person belongs. whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3
Everyone has the right to life. Iibeny and security of person.

Arficle4
No one shall be held in slavery or servitude; slavery an( slave trade shall be prohibited in all their forms.
Atficle 5
No one shall be subjected to torture or to cruel, inhum2 degrading treatment or punishment.
Atficle 6
Everyone has the right to recognition everywhere as a pe before the law.
Article 7
All are equal before the law and are ';~titled without any crimination to equal protection of the law. AU are entitled to e( protection against any discrimination in violation of this Oed tion and against any incitement to such discrimination.
Article 8
Everyone has the right to an effective remedy by the corr tent national tribunals for acts violating the fundamental riJ granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest. detention exile .
Article 10
Everyone is entitled in full equality to a fair and public hi ing by an independent and impartial tribunal, in the determinat of his rights and obligations and of any criminal charge agai him.

~6

Article. II

Penal 1. Everyone charged with a

offence has the right to be pre-

sumed innocent until proved guilty accOrding to law in a pub-

lic trial at which he has had all the guarilntees necessary for

his defence.

2. No one shall be held guilIY.of any penal offence on acco~t of any act or omission which did not constitute a penal offence, under national or international' law, at the" time"when it was committed. Nor shall a h~vier penalty be imposed than the
one that was applicable at the time'the penal offence was com-
mitted.

Article 12

No one shall be SUbjected to arbitrary interference with his

privacy, family, home or correspondence, nor to attacks upon his

honour and reputation. Everyone has the right to the protection of

the law against such interference or attacks.

I

Article 13

1. Everyone has the right to freedom of movement and residence within the borders of each State.

2. Everyone has the right to leave any country, including his own, and return to his country.

Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and princ'iples of the United Nations.

Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality denied the right to change his nationality.
Article 16
1. Men and women of full age, without any limitation dt race, nationality or religion, have the right to marry an found a family. They are entitled to equal rights as to I riage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full I sent of the intending spouses.
3. The family is the natural and fundamental group uni society and is entitled to protection by society and the Sta
Article 17
1. Everyone has the right to own property alone as well a association with others.
2. No one shall be arbitrarily deprived of his property.
Article 18
Everyone has the right to freedom of thought, conscience religion; this right includes freedom to change his religion belief, and freedom, either alone or in community with others in public or private, to manifest his religion or .belief in teachi practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expressi this right includes freedom to hold opinions withoUl Inlerferel and to seek, receive and impart information and ideas through, media and regardless of frontiers.

.... . ..... .
-- .: . .:"."~~':'~~.-""''''';~.~''

,~rti(.;/e 20

1. Everyone has the right to freedom of peaceful assembly iIld

asSOciation.

.

2. No one may be compelled to belong to an association.

'Artic/e··21
1. Everyone has the right,~ take paitin the gov~ment of his
country, directly or through freely chosen representatives.

2. Everyone has the fight to equru accesS to public service in his

country.

).

3. The will of the people shall be the basis of the authority of

government: this will shall be expressed in periodic and genu-

ine elections which shall be by universal and equal suffrage

and shall be held by secret vote or by equivalent free voting

procedures.

Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international CQ-()peration and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23
I. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence

worthy of human dignity, and supplemented, if necessary, other means of social protection.
4. Everyone haS the right to form and to join trade unions for
protection of his interests.
-Arficle24
Everyone has the right to rest and leisure, including reas. able limitation of worlcing hours and periodic holidays with pa
Aiticle 25
1. Everyone has the right to a standard of living adequate for health and well-being of himself and of his family, includi food, clothing, housing and medicalcare and necessary soc services, and the right to security in the event of unempl< ment, sickness, disability, widowhooQ, old age or other lack livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care a assistance. All children, whether born in or out of wediG< shall erUoy the same social protection.
Article 26
I. Everyone has the right to education. Education shall be fn at least in the elementary and fundamental-t;tages. Element. education shall be compUlsory. Technical and professiol education shall be made generally available and higher edu< tion shall be equally accessible to all on the-basis of meri!.
2_ Education shall be directed to the full development of t human personality and to the strengthening of respect j human rights and fundamental freedoms. It shall promc understanding, tolerance and friendship among all natiol racial or religious groups, and shall further the activities oft United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of educ::Jrion rI' shall be given to their children.

_ :_< ... • ~~

r~ ..... __ ~,_~ _ _ _ ~ __ ,~ • _ _

AttiCle 27 )-r. -
1. Everyone ~ the right freely to participate in the cultural life
of the cOmmuruty, to 'enjoy the arts and to share in scientific
advancement and its benefits. '.
2. Everyone has the ri~t· to. the .poo.tection of the moral and material interests resUlting from any scientific. litemI)' or artistic production of which h,e is the' author.
Article 28
Everyone is entitled to a social and international order in which the rights and freedoms set forth in Declaration can be fully realized.
Article 29
I. Everyone has duties to the community in which alone the free and fiJlI development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality. public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30
Nothing in this Declaration may be interpreted as implying for any Stale. group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

__ _ _" ___ __: __ -_-__._-_~_-__::s:::-_'..__._, ~~_~.~_r~

'~

~~~~_

International Covenant on Economic, Social and Cultural Rights

·.1/.
International Covenant on Civil and Political Rights
of Adopted and opened for signature. ratification and acce
by General Assembly resolution 2200 A (XXI) 16 Dece 1966
ENTRY INTO FORCE: 23 March 1976, in accordance article 49
PREAMBLE
The States Parties to the present Covenant, Considering that, in accordance with the principles claimed in the Charter of the United Nations, recognition 01 inherent dignity and of the equal and inalienable rights 0 members of the human family is the foundation of freedom, tice and peace in the world, Recognizing that these rights derive from the inherent dig of the human person, Recognizing that, in accordance with the Unlvers'al Dec! tion of Human Rights, the ideal of free human beings enJo~ fr"edom from fear and want can only be :lchieved if conditions created whereby everyone may enjoy his econOffiJC, ~oci;]1 cullural rights, as well :IS his civil and poli[ical righls. Considering [he oblig:lllon of Stales under Ihe Chaner of Unlled N;nions [0 promo[e universal respeci fOL and ob,er';) of. hum:ln rights ;:md freedoms. Reall:i.lOg thal [he IndividuaL havlOg dlltl~' to Dlkr " vlduJls ;]nd 10 the communlly [0 whICh he belong' l~ ""d, responsibility to sirive for the promotion Jnd oo"t[.·;\[)CC 01 nghlS recognized in Ihe present Coven<lnt.
-.- .,
. -".

32
Agree upon the following articles:
Part I
Article 1
I. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultuntf"devc:lopmenl.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obliga. tions arising out of international economic co-operation. based upon the principle of mutual benefit, and international law. In nO case maya people be deprived of its own means of subsistence..
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-SelfGoverning and Trust Territories, shall promote the realization of the right of self-detennination, and shall respect that right. in conformity with the provisions of the Charter of the United Nations.
Article 2
I. Each State Patty to the present Covenant undertakes to respect and to enSure to all individuals within its territory and subject to its jurisdiCtion the rights recognized in the present Covenant, without distinction of any kind, such as r<lce. colour. sex. language, religion political or other opinion, national or social origin, property. birth or other status.
2. Where not already provided for by existing legisbtive or other me<lsures, each State Party to the present Coven<lI1t undertakes to take the necessary steps. in accord<lI1ce with its constitu· tional processes and with the provisions of the present Covenant, to OIdopt such legislative or other me;lsures as may be

necessary to give effect to the rights recognized in the pf/: Covenant
3 Each State Party to the present Covenant undertake.r
(a) To ensure that any person whose rigHts or freedom herein recognized are violated .shall have <In efrec remedy, notwithstanding that the violation has been c mined by person acting in a official capacity;
(b) To ensure that any person claiming su~h a remedy s have his right thereto detennined by competent judil administrative or legfJative authorities. or by any 0 competent authority ~rovidc:d for by the legal systen the State, and to develop the possibilities of judi remdly;
(c) To ensure that the competent a~thoritil:s sh<lll enfe such remedies when grantetl.
Article 3
The States Parties to the present Covenant undertake to ens the equal right of men and women to the enjoyment of all civil ; political rights set forth in the present Covenant.
Article 4
I. In time of public emergency which threatens the life of nation and the existence of which is officially proclaimed. States Parties to the presel1't Covenant mOlY take measu derog<lting from their obligations under the present Coven to the extent strictly reqUired by the exigencies of the sit tion, provided thOlt such measures are not inconsistent v. their other obligOltions under intemation<ll I<lw and do involve discrimination solely on the ground of r<lCc. cole sex. language. religion or social ongin.
2 No derogation from articles 6. 7. 8 (par<lgraphs I ;Jnd 2). 1S. 16 <lIld 18 may be made under this provIsion

.'

3<:

)_ -Nty State Party to the present Covenant availing itself of the

right of derogation shall inunediately inform the other States

oarties to the present Covenant., through the intennediary of

.he Secretary-General of the United Nations, of the provisions

from which it has derogated and of the reasons by which it

was actuated. A further conununication shall be made,

through the same intennediary, 00 the date 00 which it termi-

nates such derogation.

-

Article 5
I. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater e:uent than is provided for in the present Covenant.
~ There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

Article 6
Every human being has the inherent right to life. This right shall be protected by Jaw_ No one shall be arbitrarily deprived of his life
In coumnes which have not abolished the death penalty, sen[enee of death mlly be imposed only for the most serious cnm"s In accordance with the law in force at the time of the commISSIon of [he crime ;md not contrary to the provision of [he present Covenant and to the Convention on the Prevention
,d Punlshmen[ of the Crime of Genocide_ This penalty can ,nly be earned out pursuant to a final judgement rendered by " competent COUr1

~-: - -.-
35
). When deprivation of life constirutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Preventioo and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes comrniaed by persons below eighteen years of age and shall not be carried out on pregnant women.
_6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any Stale Party to the': present Covenant.
Article 7
No one shall be subjected to torrore or to eruel, inhuman or degrading treatment or punislunenL In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Article 8
I. No one shall be held in slavery; slavery and the slave-trade [n all their forms shall be prohibited.
2. No one shall be held in servitude.
3. (a) No One shall be require':d to perform forced or compul. sory labour;
(b) Paragraph )(a) shall not be held to preclude, in countne, where Imprisonment with hard l<lbour may be Imposed ," a punIshment for a crime, the performance of hard l;]oOUI .n pursuance of a sentence [0 such punishment by J com pe[en[ C;01lr1.

(c) For the purpose of this paraglaph the term "forced or compulsory labour" shall not include:
(i) Any work or service. not referred to in subpruagraph (b). nornully required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;
(ii) Any service of a military character -3!'ld. in countries where conscientious objection is recognized. any national service required by law of conscientious objectors;
(iii) Any service exacted in cases of emergency or calamity threatening the life or well.being of the community;
(iv) Any work or service which forms part of normal civil obligations.
Article 9
I. Everyone has the right to liberty and security of person. No one shall be SUbjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as Me established by law.
Anyone who is arrested shall be informed. at the time of ;Jrrest. of the reasons for his arrest and shall be promptly Informed of any charges against him.
Anyone arrested or detained on a criminal charge shall be brought promptly before ajudge or other officer authori~ed by law (0 exercise judicial power and shall be entitled to trial wl(hin a reasonable time or to release. It shall not be the gen· cral rule that persons aW<liting trial shall be detained to cus· lody. bUI release may be $ubjccI to gU<lr<lntees to <lppe"r for IfIal. al any olher stage of Ihe judicial proceedings. and.
'Jld occ;Jsion arise. for execution of Ihe Judgement

- - - __...____ • •(L.;..........-,....--~"'-J.f..

.=--~.

----

37
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the coun may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been victim of unlawful arrest or detention
shall have an enforceable right to compensation,
Article 10
L All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human persoll_
2,' (a) Accused persons shall. save in e:tceptional circumstances. be segregated from convicted persons and shall be subject to sepanue treatment appropriate to their status as ullconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
3 The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adultS and be accorded treatment appropriate to their age and legal status.
Article 11
No Olle sh'lll be imprisoned merely on the ground of inabdHY (Q fulfil a contractual obligation"
Article 12
Everyone lawfully wilhin the te(mory of J S[Jte sh::dl. wllil.n Ill,,! territory. have Ihe righl [0 Ilberry of movement ;lnd (r"c· dom to choose hiS reSidence.

I

2. Everyone shall be free [0 leave any country. 'including his own.
3. 1bc above·mentioned rights shall not be subject [0 any restric· tions except IDose which are provided by law, are necessary to protect national security. public order (ordre public). public health or morals 0(' the rights and freedomrof others, and are consistent 'with the other rights recognized in the present Covenant.
4. No one shall be arbitrary deprived of [he right to enter his own country.
Article 13
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expUlsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be e;.:c/uded (rom all or part o( a trial for rea· sons of morals. public order (ordre public) or national secunty W " democratic society. or where the interest of the privale lives of (he Parlies so requires. or lO the extent strictly ntces,;lry In the opwlon of (he court In special circumstances where publiclly would prejud,ce (he Interests of justice; but any Judgement rendered in J crimln<Ji case or in a suit at law shall be made public except where (he Interest of juvenile persons

39
otherwise requires or the proceedings concern matrimonial disputes of the guardianship ofchildren.
2. Everyone charged with a qimina.l offence shall have the right [0 be presumed innocent until proved guilty according to law.
3. In the detennination of any criminal chatge against him, ( everyone shall be entitled [0 [he following minimum guarnntees. in full equality:
(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for'the preparation of his defence and to communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence. and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests ofjustice so require, and without payment by him in any such case if he does not have suf· ficient meAIls [0 pay for it;
(e) To examine. or [0 have examined. the witnesses against him AIld [0 obtain the attendance and examination of WI!· nesses on his behalf under the same conditions as WH· nesses against him;
(0 To have the free assistance of an interpreter If he c;)nnm understand Or speak (he language used in coun:
(g) No[ (0 be compelled to (estify Jgalnst hImself or (0 COn· fess guilt
4. In the case of Juvende persons. (he procedure shall he such .1'
will take accounl of (heir Jge and (he de$lrJbdny of promOllng their rehabd,t;)lJon

.'

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
6. When a pason has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows_conclusively that there has been a miscarriage ofjustice, the person who has suffered punishment as a result of such a conviction shall be compensated according to law, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
Article 15
I. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishmenl of ;lny person for ;lny act or omission which. at the time when Il was comrnined. was criminal according to [he general prin· c'ples of law recognIzed by [he community of nations
Article 16
Everyone sh<lJ/ h;lvc the fight to recognitIOn e\Trywhere ;]$ J person before the law.

Article 17

I. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence. nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law "gainst

such interference or attacks.

I

Article 18
I. Everyone shall have the right to freedom of thought. con· science and religion. This right shall include freedom 10 have or to adopt a religion or belief of his choice. and freedom. either individually or in community with others and in public or private, to manifest his religion or belief in worship. observance, practice and teaching.
2, No one shall be subject to coercion which would imp;l,r IllS freedom to have or to adopt a religion or belief of hIS chOIce.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law <lnd are necessary to protect public safety, order, health. or morals or the fundamental rights and freedoms of others,
4. The States Parties to the present Coven<lnt undertake to have respect for the liberty of the parenls and. when "pplicablc. leg<ll guardians to ensure the religious and mor<ll edUC:l!lOn o( their children in confomUty with their own convictions

Article 19
Everyone shall have the right to hold opinion~ \\ IlhOlil Inlc" ference
2. Everyone shall have the right [0 freedom of '"'P' (''''<In 111"
fight shall include freedom to seek. receive Jnd ""P,1I1 ",1<11
mJllon and Ideas of "II kinds. regardless of (ronl,e" ,',II,,',
or"lIy. In wnttng or in prtnt. in the form of .1n or 1111011:-''' 111\ other media of his choice.

42
The exercise of the rights provided in paragraph 2 of this article canies with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as 8fC provided by law and are necessary: (a) For respect of the rights or reputation ~ others; (b) For protection of national security or of pUblic order
(ordre public), or of public health or morals.
Article 20
I. Any propaganda of war shall be prOhibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
Article 21
The right of peacefulllSsembly shall be recognized. No restriction may be placed on the exercise of this right other than those imposed in confonnity with the law and which are necessary in a democratic society in the interests of national security or public safety. public order (ordre public). the protection of public health or morals or the protection of the rights and freedoms of others.
Article 22
I. Everyone shall have Ihe righl to freedom of association with others. Including the right to form and join trade unions for the prmection of his interests. No resulctlons may be placed on the exercise of this nght other than those which are prescribed by law and whIch are necessary in a democratic socIety 10 the interests of national ~curlty or publIC safety. publIC order (ordre public). the pro· "ction of pubilc health or morals or the protection of the nghls ;;Ind freedoms of others. nils anicic shall nOI prevent lhe imposllIon of lawful reSlriClions on members of the armed forces ;md of lhe police In their exercIse of this right.

, 43
3. Nothing in this article shall audtorize States Parties to the International Labour Organization Convention of 1948 concerning Freedom of Association and Protection of the RighI 10 Organize to take legislative measures which would prejudice. or to apply the law in such a manner as to pr~judice Ihe guar· I anteeS provided for in that Convention.
Article 23
1. The family is the namral and fundamental group unit of soci· ety and is enti!led to proteetion by society and the State.
. '2. The right of men and women of marriageable age !O marry and 10 found a family shall be recognized.
3. No maniage shall be entered into without Ihe free ;md full
consent of the intending spouses. 4. States Parties to the present Covenant shaH take appropriate
steps to ensure equality of rights and responsibilities of spouses as 10 marriage. during marriage and its dissolution. In the case of dissolution. provision shall be made for the necessary protection of any children.
Article 24
I. Every child shaH have. withoul any discrimination as to rJce. colour. sex. language. religion, national or social origin. property or birth. the right !O such measures of prOlection as Jre required by his S{;J{US as a minor. on the pan of his famdy. society and th", State.
2. Every child shall be registered Immediately afrer bIrth <lnd shall have a name.
3. Every chdd has lhe nghr ro ;lcqulre a nationol,,)"
Article 25
Every citizen sh:lll have the right and the opportunlly. t\ ,thour any of the restrictIons menlloned 10 artIcle 2 and WIthout unie:.· sonable restncllons:

."

(a) To lake part in the conduct of public affairs. diTealy or through frcdy chosen representatives:
(b) To vote and to be elected at genuine periodic elections which slWl be by universal and equal suffrage and shall be held by secret baIlo(' guaranteeing the froe expression of rhe will of lhe electOrS;
(c) To have access. on gener.al terms of equality. to public service
in his country.
Article 26
All pe~ns are equal before the law and are entitled without any discrimination to the equaI protection of the law. In mis respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race. colour. sex. language. religion. politi. calor other opinion. national or social origin. property. birth or orner starns.
Article 27
In those States in which ethnic, religious or linguistic minori· ties exist. persons belonging to such minorities shall not be denied Ihe right. in community with the, other members of their group. to enjoy their own culture, to profess and practise their own religion. or to usc their own language.
Article 28
I. There shall be established a Human Rights Committee (hereafter referred 10 in the present Covenant as the Committee). II shall consisl of eighleen members and shall carry out the (unctions hereinafter provided,
Th~ Commutee shall be composed of n;llion<lls of the States P:'1I1ICS to (he present Coven;!nt who shall be persons o( high moral character and recognized competence in (he field of humJn fights, consider.Hlon being given to the usefulness of the parllClpation of some persons having legal c:xperience

The members of the Committee shall be elected and shal serve in their p<:rsonal capacity.
Arficle29
The members of the Commiace shall be elected by secret ballot from a list of persons possessing the qualifieations prescribed in article 28 and nominated fot the purpose by the States Parties to the present Covenant
2. Each State Party to the present Covenant may nominate not more than two persons. These persons shall be nationals of the
nominating State. 3. A person shall be eligible for reno~nation.
Article 30
L The initial c/ection shall be held no later than six months a(ter the date of [he entry inlO force of [he present Covenant.
2. At least four months before the date of each election to the
Committee, other than an election 10 fiJI a vacancy declared in accordance with article 34, the Secretary-General of the United Nations shall address a written invitation to the States Parties to the present Covenant to submit their nominations for membership of the Commiuee within three mQnths.
3. The Secretary-General of the United NatIons shall prep;ue a lisl in alphabetical order of all the persons thus nomin<ltcd. with an indication of the States Panies which have': norrunated them, and shall submit it to the States panics to the presenl Covenant no later than one': month before the date of each eleclion,
4, Elections of the members of the Commlllee ~hJ" be held ,ll J rneetlOg of the St;ncs PJrllCS (0 the pre~enl COVen,llll con vened by Ihe Sccrct<lry·GencrJI of the Unlled N.JII(Jm ,It II", he.1dqu;!ncrs of [he UnIted NJllons A[ Ih,lt mecllng. for whIch two (hirds of the St.1ttS P:Jnles (0 (he preSCn[ Covcn;lJlI shall constitute a quorum, the persons elected (0 the Camlllll

,.

46
tee shall be those nominees who obtain the largest number of
votes and an absolute majority of the votes of the representa.
tives of States Parties present and voting.
Article 31
1. The Committee: may Dot include more than one national of the same State.
2. In the dection of the Committee•.conSideration shall be given to equitable geographical distribution of me:mbership and to the representation of the differe:(l( forms of civilization and of the principal legal systems.
Article 32
I. The members of the Commicree: shall be elected for a term of four yean:. They shall be t:ligible for fe-eJection if renomi· natc:d. However. the terms of nine of the members eJected at the first election shall expire at the end of twO years: immedl' ately after the first election. the names of these nine members shall be chosen by lot by the Chairman of the meeting referred to in article 30. paragraph 4.
2. Elections at the expiry of office shall be held in accordance with the preceding articles of this part of the present Cove· nant.
Article 33
If. ItI [he unanimous opinion of the other members. a member
of the Corruninee has ceased to carry out his functions for <lOY CJuse other than absence of a temporary char3ctcr. the Chalf· man of the Committee shall notify the Secretary·General of the United Nations. who shall then declare the seal of th~t member 1O be vacant In the event of ,he death Of the reslgn::JtlOn of ,1 mcmh<:r of the Comn1l0ee. the Chalrm:m sh<lll ImmedIately nOI,f] ,he Secrcury.Gencral of the UnIted NJIIOnl who Sh.lll dccl.lfc

the scat vacant from the date of death or the dale on wh" resignation lakes effcct.
Article 34
J. When a vacancy is declarod in accordance with article 3 if ~e ter:m. of ?ffice of the member to be replaced doe expu-e WIthin SIX mondJs of ~e decl~ation of the vacmc: Secretary-Gen~ral of the Umted Nauons shall notify ca, the States Pa.rt.Ies (Q the present Covenant., which may w twO months submit nominations in accordance with anie for [he purpose of filling the vacancy.
2. The:. Secrcta.ry-~eneral of the United Nations shall prep' list In alphabeucaJ order of [he persons thus nominated shall submit it [0 [he States Parties [0 [he present Cov", The c1ec~on [0 fill [he vacancy shall then lake place lO ac dance WIth [he relevant provisions of (his parT of the pre Covenant.
3. A member of the Commicree e1ec[ed to fill a vacancy d"cJ. in accordance with article 33 shall hold office for [he rem du of [he tenn of the member who vacated the seat Oil Corrurullee under the provisions of that wiele.
Article 35
The members of [he Committee shall. with (he ::JpprovJI of General Assembly of the United Nations. receive emo/um, from United Nations resources on such (erms and cond,I,Orl\ Ihe Gener'll Assembly may decide. havlOg regard (0 Ihe 1011' (ancc of the CommIltee's responsibilities
Article 36
"/1,C SecrelMY ·CencI JI of (he UnJled N;JlJ(Ill\ '-fuJl 1''''' "I, I
llt'cClSJry S\.1[( ;]nd i.xlillleS for Ihe ,,((ecl,' c I'Cllollll.lI',,· ,>/ I 1,"1(1100<; of {he COlllmJlICC under Ihe pre'"rll Co' CII.Ill'

Article 37
I. The Secretary-Genecal of the United Nations shall COnvene the initial meeting of the Committee at the Headquarten; of the United Nations.
2 After ilS initial meeting, the Committee shall meet at such times as shall be provided in ilS rules of procedure.
3. The Conuniuee shall nonnally m~[ the Headquartezs of the
United Nations or a[ the United Nations Office at Geneva.
Article 38
Every member of the Committee shall, befo.re taking up ~is
perfo~ duties make a solemn declaration in open commlUee that he WIll his functions impanially and COllSCientiously_
Article 39
I. The Committee shall eleet its offieers for a term of two years. They may be re-elected.
2. The Committee shall cs[abiish ilS OWn rules of procedure, but
these rules shall provide, inter alia, [hal;
(a) Twelve members shall eons[itute a quorum;
(b) Decisions of the CommiUee shall be made by a majority Vote of the members present.
Article 40
The St'ltes Parties 10 the present Covenam underuk., 10 sub. mit reports on the me'lsures they have adopted which give effect to the fights reeogniud herein and On the progress made In the enjoyment of those rights:
(a) With,n one year of the emry into force of the present Covenant (or the Stale PartIes concemed.
(b) Thereaflcr whenever (he Committee so requests.

2. All reports shall be submitted [0 the Secretary-General of I
United Nations, who shall transmit them [0 the Comrniuee I
consideration. Reports shall indicate the factors and difficulli, if any, affecting the implemQltation of the present Covenant.
3. The Secretary-General of the United Nations, may, aft?r COl
sultation with [he COmmittee. transmit to the speclaliu agencies concerned copies of such parts of the reports as m;] fall within [heir field of COmpetence.
4. The Commiuee shall study the reports submitted by the State~
Parties to the present Covenant It shall tl"ansrrut its repons. and such general comments as it may cpnsider appropriate. 10 the States Parties. The Committee may also transmit {o Ihe Economic and Social Council the5e COmmellls along wilh Ihe copies of the l"epom it has l"eceived frOm States Panies 10 {he present Covenant.
5. States Parties to (he pl"esent Covenam may 5ubrnit 10 the Committee observations on any comments that may be made III accordance with paragr.lph 4 of this article_

Article 41

1- A State Pany 10 the present Covenant may at any time decl,1ft:

under this anicle Ihat it recognizes the compelence of Ihe

Committee 10 receive and consider communicalions [0 lhe

effect th'l{ a St;}le Party claims that ano{her SIOlle Pan), IS nOI

fulfilling nica{ions

ils obligali under {his

oanrst iuc lned emr athy ebper er5eecme i vCeOdve;:nm;dlnLconC~olmdemreud.

only if submj[[ed by a Slate Party which has m<lde a decl,lr.l.

[ion recognizing in regard {o CommUlee. No communlCOl[lOn m,({ee If II COlleems a Sla(e Pan

Itself {he compe shall be receIved
y which ha~ nO!

len by

cIeh~

o(
CU

I"
IlI

rn.lde \UC"

"
I

declaratIOn Comrnunlcallons received under lIlI' <lrl,cic ,".]Ii

be deal( wllh In JCCordJnce \Vllh the follOWing procedure

(J) If.] Sla[e Pany 10 Ihe present COVCnJIlI COllslde" '''.11 'molher S[ale P"ny IS nOI giving ef(ec[ to (he pro\"SIO'h of (he preselll Co\enan!. II mOly. by Wf/llen COmrnUnlLl

so
lion, bring the matter to the attention of that State P~. Within Ihree months after the receipt of the COQUDWllCacion the receiving State sba1l afford the State which sent the communication an cxplaDatioQ, or my ocher statement in writing clarifying the matter which should include. to the extent possible .00 pertinent, rderencc to domestic pcocodw-es and remedies .taken, pending. or available in the matter,
(b) If the matter is not adjusted to me satisfaction of both States Parties concerned within six months after me receipt by th.e receiving Stale of the initial communication. either State shall have the right to refer the matter to the Committee. by notice given to the Conuninec and to
the other State;
(c) The Commiuee shall deal with a maner referred to it only after jt has ascertained that all available domestic remedies have been invoked and exhausted in the matter. in conformity with the generally recognized principles of international law. This shall not be the rule where apphcation of the remedies is unreasonably prolonged:
(d) The Committee shall hold closed meetings when examining eommunications under this article;
(e) Subject (0 the provisions of subparagraph (c). the Committee shall make available its good offices to the States parties concemed with a view to a friendly solution of the maUec on lhe basis of respect for human rights and fundamental freedoms as recognized in [he present Covenant;
en In any matter referred 10 il. the Commillee may call upon
Ihe Stales Parties concemed. referred [0 In subparagraph (bJ. (0 supply ;]ny relevanl inform,J(ion;
\.\!) Thl: States Palilc5 concemed. referred 10 In subparagraph (b). shall have the right to be represented when the mailer IS beIng consIdered ID the Commltlc" and [0 make sub· mIssions orally ;.:mdlor In writing;

51
(h) The Conunittee shaH. within twelve months after the date of m:eipt of notice under SUbparagraph (b), submit a report: (i) If a solution within the (enos of subparagraph (e) is' reached, the Committee shall confine irs report 10 a brief statement of the facts and of th~ solution reached;
(ii) If a solution within the teons of subparagraph (e) is not reached. the Conunittee shall confine its report to a brief sutement of the facts; [he writlen submis· sions and record ofthe oral submissions made by the States Parties concerned shall be aClached 10 Ihe report.
In every marter. the report shal/ be communicaled 10 the SUtes Parties concerned.
2. The provisions of this article shall come into force when ten States Parties to the present Covenant have made declarations under paragraph I of this article. Such declarations shall be deposited by (he States Parties with the Secretary-General of the United Nations. who shall transmit copit:s thereof 10 Ihe
orher SUtes Parties. A declaration may be withdrawn at any
time by notifiearion to the Secretary·GeneraL Such a with· drawal shall not prejudice the consideration of any m;JC(er which is the subject of a communication alre<Jdy transmirted under this <Ut.icle: no further communicJtJOn by any State Party shall be received after the notification of WIthdrawal of thc declaration has been received by thc Secre[Jry-Gcncr~1 unless [he Stale Party concerned has made J nc\\ dec/.lf.ltJ(lfl
Article 42
(a) If a matter referred [0 the COmml!lee m acuHil.Jf1(C ",111 aI1ide 41 IS not resolved 10 the s;][JsfJcllon of thL 'il.ltc' Parties concerned. the CommlUee may. WIth [he prJ()[ consen! of {he SI;]tcs Panics concerned. JppOlnJ .1n Jd hoc Concliiallon Commission (haeinJflCf referred 10 JS

:~:{~?!i!:b~L:,"i~:' : ~~:~:

...,.~

'... "

.~ .
'"'

.

,:. •

.., .....
.:Mt,if;(;';;"');~:L~{:~~~'

.'f'.' . ..-, .-~i~if..~~#i~iii~:;f~\;f~~;i:~:"~iki~r

.

52.
the Commission). The good offices of the COmmission shall be made available to the States Parties concerned with a view to an amicable solution of the matter on the basis of respect for the present Covenant;
(b) The Commission shall consist of five persons acceptable to dte States Parties concerned If the StateS Panies 000·
caned fail to reach agreement within throe months 00 all
or part ofthe coD1p05itiOQ of the Commission, the memo bers of the Commission coDCetniag whom no agreement has been reached shall be doctedby secret ballot by a lWo--thirds majority vote of the Committee from among its members.
2. The members of the Commission shall serve in their personal capaci!),. They shall not be nationals of the State Parties COncerned. or of a State not Party to the present Covenant.. or of a Slate Party which has not made a dedaration under article 41.
3. The Commission shall elect its own Chairman and adopt its own rules of procedure.
4. The meetings of the Commission shall normally be held at the Headquarters of the United Nations or at the United Nations Office at Geneva. However. they may be held at such other convenient places as the Commission may determine in con· sultation with the Secretary-General of the United Nations and the SUtes Parties concerned.
5. The secretariat provided in aCcordance with article 36 shall also service the commissions appointed under Ihis article.
6. The information received and collated by the Committee shall made available to the Commission and the Commission may cJ.1I upon the StJ.tes Parties concerned to supply any other relevJ.D( information.
7. When Ihe Commission has fully considered the matt"r. but In ~ny evenl nOI laler lhan Iwelve mOnlhs ~fler having been seIzed of Ihe mallCf. il shall submit (0 Ihe Ch<lirman of Ihe Committee ~ report (or communic;luon to Ihe SI;)IC$ P<lrties concerned

(a) If the COnunission is unable to complete its Considqat
of the matter within twelve months. it shall confine ..-eport lO .. brief statement of the status of its considl tion of the matter,

(b) If an amicable solution to the matter on the basis.

respoc:t for huOlaD rights as recognized in the p..-es<

Covenant is reached, the Commission shaJl confine

report to a brief statement of the facts and of the so/uti,

reached;

I

(c) If a solution within the terms of subparagraph (b) is n
reached. the Commission's report shall embody its fin' ings on all questioos of fact relevant to the iS5u<
between the States Parties concernC'XI. and its views c the possibilities of an amicable solution of the matte
nus ..-eport shall also contain the written submissions an
a record of the o..-al submissions made by the States Pal ties concerned;

(d) If the Commission's report is submitted under subpara graph (c), the Stales Parties concerned shall, within thre. months of the feceipt of the report, notify the Chairrnar of the Committee whether Or not they accept the con!enl' of the report of the Commission.

8. The provisions of this article are withoul prejudice to th( responsibilities of the Committee under article 41.

9. Th" States Parties concerned shall share equ;vly all Ihe
expenses of the members of til" Commission in accordance with estimates to be providC'XI by the Secretary-Gweral of the United Nations.

10. Th" Secrecary-Genqal oflhl: United Nations shall be empow. ered to pay the ex?"nsc:s of the members of the ComrrusslOn. if necessary, before reimbursemenl by the SI<ltes PJ.!ties con. ccm"d. lD accordance with paragr<lph 9 of th.s an.ci('

• •

J • • 54

Article 43

The membccs of the Committee, and of the ad.hoc conciliation

colIUlU.S•Slons which may be appointed under a.r•ticle f42. shall be

~t1. ~ 'ded to the facilities, privileges and iuunumtles 0 expertS Oil

1D1SS101l

,0("

the

United

NatiollS

as

laid

down

in

the

r

el •

ev •

a

otfstehc-

lions of the Collvention on the Privileges and Immumtles 0 e

Unitod Nations.

Arlicle .u--
The provisions foc rhe implementation of the present. Cov~­ nant shall apply without prejudice [0 rhe proccd.ures p~escnbcd m rhe fidd of human rights by or under the constItuent ms~m~nts and rhe conventions of the United Nations and ~(the specialized agencies and shall not prevent the States Parties [0 the pr~sent Covenant from having reCourse to other proc:<'ures f~r seltling a
dispute in accordance wirh general or special mternatlOnal agree.
ments in force between them.

Article 45
The Committee shall submit [0 rhe General Assembly ~f rhe United Nations, through the Economic and Social Council, an annual report on ilS activities.

Part V

Article 46
Nothing in Ihe present Covenant shall be interp~eted as impairing the provision of Ihe Charter of the. United NatIons and of the constitutions of the specla/tzed agencies which ddine. the respective responsibilities of Ihe various organs of Ihe United Nations and of Ihe speclallud agencies in regard 10 Ihe mailers deall with in the present Co\'cnam

Article 47
Nothing in the present COVenant shall be interpreted impairing lhe inherent.right of all peoples to enjoy and utili fully and ffccly their narura) wealth and ..esources_
Pari VI
Article 48
I. The present Covenant is open for signature by any Stat, Member of the United Nations or member of any of its spe. cialized agencies, by any State Party to the Statute of the International Coun of Justice, aJ;Id by any olher Stale Which has been invited by the Gene..al Assembly of the UnHed Nations (0 become a Party to the present Covenant.
2. The present Covenant is subject 10 ratification. Instruments of ratification shall be deposited with the Secretary-General of rhe United Nations.
J. The present Covenant shall/x: open (0 accession by any Stale referred to in paragraph 1 of this article.
4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-Genual of Ihe United Nations
5. The Secretary-General of the United Nations shall inform :III States which have stgned this Covenant or acceded to il of the deposit of each instrument of ratification or accession
Article 49
I. The present Covenant shall enter imo force three months affel the dale of the deposlf wuh the Secrelary-Gener.,1 of tile United Nallons of thc [hlny·fifth instrumcrH of r;)tdic.l[IOn Or jnstrument of aCCC~Slon
2. For each 51;lIe r;)tIfYlng the prcscrH COVen;]n[ or ;)ccedlng (() It
or after lhe deposu of [he Ihl!l} ·fif[h Ins(rumen[ r;)IIfiCJIIOn or

56
instrument of accession. the prescot Covenant shall entct'" into focce three months after the date of the deposit of its own instrument of r.ltification or instnunent of accession.
Article 50
The provisions of the present Covenant shall e)l;tend to aU parts of fed~1 States without any Iiqlitations or e)l;ceptions.
Article 51
I. Any State Party to the present Covenant may propose an amendment and file it with the Secretary-General of the United Nations. The Sa:retary-General of the United Nations shall thereupon communicate any proposed amendments to the States Panies to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Patties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.
Amendments shall come into (orce when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Covenant in accordance with their respective constitutional processes.
When :>mendments come Into force. they shall b" bIndIng on lhose St:>["S Parties which have ;}ccepted them. other States P"n.ics still being bound by the provlslon~ of the present '::ovcn<lnt :>nd any e<Hiler amendment whIch they have Jcccpted.

57

Arlicle52

Irrespective of the notifications made under article 48, para-

gtaph. 5 the Secretary-General oCthe United Nations shall infonn

all States referred to in paragraph I of the same article of the fol-

lowing particulars:

I

(a) Signatures, ratifications and accessions under article 48:

(b) The date ofthe"entry into force of the present Covenant under article 49 and the date of the entry into force of any amendments under article 51.

Article 53
I. The present Covenant, of which the Chinese, EngliSh. French. Russian and Spanish texts are equally authentic. shall be deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of the present Covenant to all States referred to in article 48.

 
 A< \ v----e C\c,-,,\,~~ h.o-S v"-(, ~'-e-_-\"- \c\J.A.::'P,v-.~~ ?>,--b\'V,-\.~
CW''-L~~'"\..J \:<h7\.l€.S ~ l<'fAe.~ \'It:\"2\\\,
]I: .
\

A. \\:---e (Jlcu\,,-'-t-'\~(~ ~"i') i01 \--AL 7)\--\-\J,y<\<. tp<:::)he \--\C::;\''-,,)
~\tOXTC;.,;'c.t-tt,~l L"A.,~ - '''''.:17\' /?:>Cx (;\~, t ~-,t-; }1v\o'Cl\~Ch(T4-
?-':-/,?-.0: ?-7

IS:L,

f1\r~~(\+ o-f-' C \o1~ ~ ~q~_ "hncxr-c: c+ "--+--o~c\' ClvC~'F'~''-+\i

_(::\\\.D,\;lce.b ~ ~hS-\.~-htu\, ~-'--0t\.-\ 'r[t,,~cl f[~SC'\..\' '~ffi(\R")J\J'--'-' \~ ~-\!0-\t9~"'-- ~,-,--5CJ,-! ct::";- '0evO~'\ CE',\'-I(-t'-LGn'c'Ju'-.()"--\ c~~~CC-,\~~)..-~(, \~C

'-'iYY1- ~~ ~. b"1 t-(( L "¢1lv'\::/v)v""'-)-'O,-~iV'-'0_

":'~l(-re-h ~ ,,-

\'- L(iCt,q \~n" c=-hc."L\J, I.,.,)

\\AC'(iF--·C- \r\,()

\.c1(v.,.:J

tE7,(A,lo-i.;-,,\~..:LV\, e4,:"*"C,\~\,-~,vV"--("::!v+ <S~ \(e '\"'\'s't,\'\ " , ,\ C\.e:c:v\(hJt

u --f\'>\fU.!\-L.(V5 -~

fbI:J e "- -\ . f"=),Jd,-- c"

'ClS\
'\Ct'V"I,

'v'--A' 'r\ (---\L't<'-.2.

"-'-~"~<C\, --

\.f";> , :res~Y--C,r+-\ \'"c~ u

e; \' ~'-':;lr'\\'\) ,\ ,r\i~' (Cc~~.t,\~~\~Jl~~' __~h:-M-h t:,\iJe.i CC-\-'-t'm~"j

t'V\ ~\O,t, \(\0 "",~LCt\ r(~~I\CVj"\ \7-0 ~ecl --\-0 ~ '~"'-0~',,,t'- cs~

<[~'\e-\l- --\~"",>-J-h.::;,::" ~"\ o..&&\,'-~~.t.\, i ~+ \j'\'-c\C{r\-e-?=--:, ;+~'-€-" ~L-lCC \."

S'(rn-e.t~D0 UCL.l~se r1"l:) hc\_~:e- (-~-\~ ?7\--e'C\-c ('~\\'\"Cl;'\'L(' --\..-h\'~~
FD/JCtJ!V\ i.J0t~, \'"'-Ot (~\;\..CU'--L'e.... (----Yi-'-£' c;-;(-v\iI.A---C.-,,'~\r ~'-l.'Yb£- c.~;..Q-~~\-..e\j- r%'-..vH,-~,;, ~

}J:,

&'tte+':
(ceC-\Cv\C8;-~~1~U~dijC~·~'(,<::,\- ~" (e"\C;l-c;~?,(lL C\v,",- -f-hc ~~: ~\L~tP c,~
0 -j·he. C\--I,,\+W. '\l,,-c)<-+-..-t~e \:\c-~\'t,v'\-\'::.'?f b·e c::c<-J.-z...,ccJectc d_c.:.~\.-\Cl(-r-C
r-l-,\\e-':(~('fJ\')."-C'C\'.tC\V.~.)\CY\'-\S.8) "~"r-A"A,--t\Q')~q'_(\\\:\w\-\-I-J;'\Ce-~'~J\'.\._t\\""C"TI'.~,\ho' '0?l\-E'\ -S, f'\ri"_-\CClI,\T~v'-v'-\l.J\\.(C',L--'-"'-':':L'r-\'tCf::£\.C,.\I,i.-'-~1- (ld_ ~ ,
:\\.~('Lt~'- ~~~I.C~~ \'\\~Ef\a_\ ,o..C.A-~J \"..2,\"(::' \""~:'\h+ 'o~'--y-h~~
c~t\eV~I{CU/~,-' (5o:-Cll'\'+- ~~\....LC~" \'E: t(-e* CLC:~ '-- ,+ \~"--t CirecCi\ ~x,
~~C'---l\Y\-\~+ \Co E:\/\"~'I--\-\-£Q rTc,

FORM A

FORM TO BE USED BY A PRISONER IN FItINGFAL~PLAINT
UNDER THE CIVIL RIGHTS' ACT, 42 ret::S Ut]J~15~l;':9~~ 1J;~.,,!\
IN THE UNITED STATES OISTR:re'fE~TAt111: 57 r SOUTHERN DISTRICT OF IOWA
l/\L.E~:·'il. ~) ~I, I:I·~:\ ~ 11,) ~ j~U!:~T
'~"l'U-;UiliI Ilj"LL,."..,,I,,!..1Il IuIl"~·' l'rt"'1I""v""i u.,,r-"",t';-\

(Enter above the FULL name and inmate number of the plaintiff or plaintiffs in this act~on)

vs.
VR)oV'l ;;h't.o\E~7) \~\\\\,£ 0(lfA~O\o.Cle. i

er Ncy'\D,j \(\ Ar e( Ka WI b)nT~(e,--;

\

i

( I

M~ ~\0'-\r Vcc\J\rl ili(~X7ik~:\e

;

()

COMPLAINT

(Enter above the FULL name of each defendant in this action)

(NOTE: If there "is more than ONE plaintiff, a separate sheet should be attached gLving the information in ~arts I and II below for EACH plaintj by name.)

I4 Previous Lawsuits:

A. Have you begun other lawsuits in state or federal court

(W dealing with the same facts involved in this action or

otherwise relating to your imprisonment? Yes (

) No

B. If your answer to A is Yes, please answer the questions 1 thru 7 on next page. (If there is more than one lawsuit describe the additional lawsuits on another sheet of papeI using the same outline.)

L. Parties to this previous lawsuit
Plaintiffs____________~\~I~\~!~A~------------------------
IA De::endants------------~~1:.~:\ !~~------------------------
2. Court (if federal court, name the district; if state court, name the county)
N/A
3. Docket NUmber___________/______~t)~I~/~/~~---------,---
4. Name of judge to whom case was as 5 igned_-¥-,-A>---_

5. Disposition, if known (for example: Was the case dismissed? Was-it a?p~aled? Is i t still pending?)

N/A

N A 6.

Approximate

date

of

f!iling

l

a

w

s

u

i

t -

-

, .

.

.

/
~l~'---

r ' 7. Approximate date of disposition_____N~\~,/~A~------------

II. Place of Present Confinement__----cM~".'.\....,.}.,.J.Q....._~;I,...;.~.:.k..·~_._(y"-.'.e..g..>.;.:;..d-ecl;;~..;...-..~W~;''''_~+--

A.

Is ther~.prisoner grievance procedure in this institut~

Yes [V] No [ ]

B. Did you present the facts relating to your cymp12int in state prisoner grievance procedure? Yes (~/] No[ J

C. If your answer is YES, 1. What steps did you

UGb[CM'4.£ ~(&ebS. 2. What was the result?

D. If

':'(O-l)J0-5;·A-tlY\(
'f4e? 0~ ~!XesS.

/

E.

[ If there is no. prison grievance procelure in the ~~tll~
did you cornpla~n to prison authorities? Yes [NA~o

-2-

!

F. If your answer is YES,
1ft ----- 1. Nhat steps did you take?.....------~N~/~~------..........
....................----------------.....----.....--------.....---------------
2. Nhat was the result?............--~-N~/.!~fLLQ~-----------------

III. Parties

(In item A below, place your name in the first blank and plaCE your pr'esent address in the second blank. Do the same for additional plaintiffs, if any.)

A. N.?.me 0 f Plain tiff

D\' \Q\ ~h\),..a- G?'-1:=be J.-\-C')b,)

Address -::c.f?j~ I p ""¥- ?S\Co;, F:\:) 6tlocLt5('\V, /~S" £,£(n:3:=Z_

B. Additional plaintiffs________- , - - - - - - - - - - - - ,
\)/4

(In item C below, place the full name of the defendant in the first blank, his official position in the second blank, and his place of e.'11ployroent in the third blank. Use i tern D for the names, positions, and places of employment of any additional defendants.) .

C.

Defendant~,\, ~~re\-E..S

is employed as~

U'Q\t N\C\I.:~~et

at 'J:£.L'['", 7"'«\T¥ =:r~b&YYhh.'~y

D.

Addi tional defendants \~\\\\\t,.
\<o.KeV) Wmct1e\(! N\. R\'fh~?6~,

0yD:eers::":.K",-\:>\,Y:}bG,e~,

~C'\L'\.(-;1 \<1;c L:\C~\
C'-iCV,r1:r: '

IV. Jurisdiction
This'complaint is brought pursuant to 42 U.S.C. § 1983, and jurisdiction is based on 28 U.S.C. S 1343(c). Plaintiff(s) allege(s) that the defendant(s) acted under color of state la~
-,- with regard to the facts stated in -part V of this complaint.

v. Statement of Claim

(State here as briefly as possible the FACTS of your case. MUST state exactly what each defendant personally did, or fc to do, which resulted in harm to you. Include also the namE of o~~er persons involved (for example, other inmates) and ~
the date and place of all events. Attach an extra sheet if
necessary, and write the heading PART V CONTINUED at the tOt the sheet. Keep to the facts. 00 not give any legal argume
or cite any cases.)

s.;c £.e),,'lfd'C:J VV\s.0-VL:\-hS ~£0'--'i?c:,·1l---0 AS? ~){J--£s+vl,el' l

v4 1JP:'!"W'-0n'-?f1 Q,\l, -'tl.w",is .;~V'td9;>

:=Mi)lVVl~'t< - 0\(1 cc,qA<r

ltD Q. ¢S:i..,0/s: ~+- C>\O}N-E'/ \qe£-v:" \ J..\(Q1Jp =--isr> ~ C\cJ, \

r-t ~~~=:~~~d~~ _l,e-- -\)rtt-~.-"~_

u _ _Sf? ------=--.,_

-

~_Ahd1"- \"ickl-=--+t~~~-\~~

YL 'f2?j '1.[./\\"00\ 0v,---O-crS:QU.;'C",7_~ $(1/ gtr\~'£.Dj\;* 1\',\0'-'> ~c9 ,(J (/' re

\£<tchKii'l'\£&dQ y~ 10-!9\-:s'vf:y:tl0<dr- \Qe_( ~c0(_ C>,--, 1t~0s-\:j.,w- -

(2n _ CAL£;--Qu'Jo,-}--= to:::Lb,Jv)2Z- -

j We - O:?- ~ \ Q - 7 - 0 ,]-... c~5L.. s:;;6-fr:g.Aj

A r±s>v0V2,.c\kf /' ~ L'toJ/>A::Xl'<2--Y\ti'ci. V"X1 ~?:(q\;v'. ~Qj;??6V\&--A! +v c

k2:--97!b\1-:-, 0(\ O(k, Lt,. 9f2Q::;:L :t\~,- u\.~r\\tQJ/±- hc~- Cl ~s~ca-)\/\'r

C.r)Wl(7\~ck.bvv\J.~se-(J'-~)! -~c,,"0\~-j-§ '-~\'\-e Q." ~W?-t\MJ -\

jpc7 \}:c\- b%(uj..~ "'txVrYc, mc,\->'ty". CLU0-.Ap\tt4 do ~;:c:- _f2X"-{/q--- QtA-t

hv.v'''- -:K·l ~ _k~:.>.\t::,.

_ _

v'''Y'''I..,-'' , ,- _" '-- )_,c.. C) .,-c,:-;-- , ----:-:- _- I _ 1'- _ _

, •

VI.

C~I'J Q.;v~ ) &<:?r ~ ~\rli-;q !(A \:(::0Q\,-c \J CUO;V\_ CQ),--t'D2('~

::W)Jl([c'&.!'~\ 72:lct\. i'~\.~ o:,,\s \'!){hd~~t v-/\( ::A!h,~&&,y==d'~i;:

\&: ~'C'u(+ q=r ,~oo @w',; Cg\'e-R as

VVl.Cq. t ?s\?,(,e,(2.Q-M-:-\jet .p\o\.J\t\""

"'--- ( ct,O \, .j ~//'\:j:,~,-~ M R(."\{

c

WII. Statement Regarding Assistance in preparing This Complaint

A. Did any person other than a named plaintiff in this actil
assist you in preparing this complaint? Yes [ ] No [yl

B. If your answer is YES, name the person who assisted you.
NPr

C. Signature of person who helped prepare complaint.

b-\A:::

NA-

(Signature)

VIII. Signature(s) of Plaintiff(s)

Signed this Jlf

~~ day of

(Si~h{)

Signatures of additional plaintiffs, if any:

-5-

 
 Case 4:03-cv-90074-RP-TJS Document 406 Filed 08/05/08 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

In the matter of

)

)

AMERICANS UNITED FOR SEPARATION )

OF CHURCH AND STATE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

PRISON FELLOWSHIP MINISTRIES, et al., )

)

Defendants.

)

__________________________________________)

Cases Nos. 4:03-cv-90074-RP-TJS, 4:02-cv-90447-RP-TJS, 4:03-cv-90101-RP-TJS

JOINT MOTION/STIPULATION BY ALL PARTIES RE SETTLEMENT OF ATTORNEY’S FEES, COSTS, AND EXPENSES;
AND (PROPOSED) ORDER

All parties to this action hereby jointly move for and STIPULATE to the following, and

the Court hereby ORDERS the following:

1. On or before September 2, 2008, the defendants in this action (“Defendants”) shall

pay or cause to be paid, via wire transfer or cashier’s check, $20,000 to plaintiff Americans

United for Separation of Church and State.

2. Plaintiffs and Plaintiffs’ counsel will be solely responsible for the payment of any

taxes that they may be required to pay under the law due to the payment of the settlement sum

referenced in paragraph 1 hereof.

3. The settlement amount shall represent full satisfaction of any and all claims against

Defendants by Plaintiffs, Plaintiffs’ counsel Americans United for Separation of Church and

State, and Plaintiffs’ counsel Rosenberg Stowers & Morse for attorney’s fees, expenses, and

costs for (a) work they performed in this case from January 16, 2008 through May 20, 2008, and

1

Case 4:03-cv-90074-RP-TJS Document 406 Filed 08/05/08 Page 2 of 3

(b) work they performed after May 20, 2008 relating to attorney’s fees, expenses, or costs for the January 16, 2008 through May 20, 2008 work.
4. Plaintiffs further acknowledge that the settlement amount paid pursuant to the Court’s order of September 13, 2006 represented full satisfaction of any and all claims against Defendants by Plaintiffs, Plaintiffs’ counsel Americans United for Separation of Church and State, and Plaintiffs’ counsel Rosenberg Stowers & Morse for attorney’s fees, expenses, and costs for work they performed in this case prior to January 16, 2008.
5. The Court hereby retains jurisdiction to enforce this Stipulation and Order. The parties are hereby deemed to have submitted irrevocably to the jurisdiction and venue of this Court, and to have waived any objection thereto, for any proceeding arising out of this Stipulation and Order.
IT IS SO ORDERED on this the _______ day of August, 2008.

____________________ Hon. Robert W. Pratt U.S. District Judge

IT IS SO AGREED AND STIPULATED.

By: /s/ Alex J. Luchenitser

Date: August 5, 2008

Alex J. Luchenitser, Esq.*

On Behalf of Americans United for Separation of Church and State

Ayesha N. Khan, Esq., Legal Director (appearing pro hac vice) Alex J. Luchenitser, Esq., Senior Litigation Counsel* (appearing pro hac vice) Americans United for Separation of Church and State 518 C Street NE Washington, DC 20002 Phone: (202) 466-3234 Fax: (202) 466-2587 E-mail: khan@au.org / luchenitser@au.org *lead counsel Counsel for plaintiffs

2

Case 4:03-cv-90074-RP-TJS Document 406 Filed 08/05/08 Page 3 of 3

By: /s/ Dean Stowers Dean Stowers, Esq. On Behalf of Rosenberg, Stowers, & Morse

Date: August 5, 2008

Dean Stowers, Esq. Rosenberg, Stowers & Morse 1010 Insurance Exchange Building 505 Fifth Avenue Des Moines, Iowa 50309 Phone: (515) 243-7600 Fax: (515) 243-0583 E-mail: deanstowers@aol.com Cooperating Attorneys, Americans United for Separation of Church and State Counsel for plaintiffs

By: /s/ Anthony F. Troy

Date:

August 5, 2008

Anthony F. Troy, Esq.

On Behalf of Prison Fellowship Ministries and InnerChange Freedom Initiative

Anthony F. Troy, Esq. (appearing pro hac vice) Ashley L. Taylor, Esq. (appearing pro hac vice) Megan C. Rahman, Esq. (appearing pro hac vice) Michael E. Lacy, Esq. (appearing pro hac vice) TROUTMAN SANDERS LLP 1111 East Main Street P.O. Box 1122 Richmond, VA 23218-1122 Counsel for defendants Prison Fellowship Ministries and InnerChange Freedom Initiative

By: /s/ H. Loraine Wallace

Date: August 5, 2008

H. Loraine Wallace, Esq.

On behalf of Terry Mapes, John Baldwin, Robyn Mills, Art Neu, David Erickson, Sheryl

Griffith, Michael Coleman, and Michael Sadler

Gordon E. Allen, Esq., Deputy Attorney General (ret.) H. Loraine Wallace, Esq., Assistant Attorney General Special Litigation/Corrections IOWA DEPARTMENT OF JUSTICE Hoover State Office Building Des Moines, IA 50319 Phone: (515) 281-4419 Fax: (515) 281-4209 Counsel for defendants Terry Mapes, et al.

3

 
 File Date: 07/27/2005 CaCsasee:44:0:033--ccvv--990007047-R4P--RTPJS-TJSAmeDriocacnusmUneintetd,2e4t 0al v.FPirliesodn0F7el/l2ow8/s0hi5p, etPaal ge D1ooc f#:3237

p: 1 of 3

File Date: 07/27/2005 CaCsasee:44:0:033--ccvv--990007047-R4P--RTPJS-TJSAmeDriocacnusmUneintetd,2e4t 0al v.FPirliesodn0F7el/l2ow8/s0hi5p, etPaal ge D2ooc f#:3237

p: 2 of 3

File Date: 07/27/2005 CaCsasee:44:0:033--ccvv--990007047-R4P--RTPJS-TJSAmeDriocacnusmUneintetd,2e4t 0al v.FPirliesodn0F7el/l2ow8/s0hi5p, etPaal ge D3ooc f#:3237

p: 3 of 3

 
 395 F.Supp.2d 805 (2005)
In the matter of AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, et al., Plaintiffs, v.
PRISON FELLOWSHIP MINISTRIES, et al., Defendants.
Nos. 4:03 CV 90074(L), 4:02 CV 90447, 4:04 CV 90101.
United States District Court, S.D. Iowa.
October 13, 2005.
806 *806 Richard B. Katskee, Americans United, Ayesha N. Khan, Americans United, Alex J. Luchenitser, Americans United, Sara Jeannette Rose, Americans United, Washington, DC, Dean A. Stowers, Rosenberg, Stowers & Morse, Des Moines, IA, Heather Lynn Weaver, Americans United, Washington, DC, for Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd, Sandra Sobotka, Plaintiffs.
Gordon E. Allen, Department of Justice, H. Loraine Wallace, Department of Justice, Des Moines, IA, Robert A. Angle, Troutman Sanders LLP, Richmond, VA, Brent R. Appel, Wandro, Baer, Appel & Casper, PC, Des Moines, IA, Peter A. Gilbert, Troutman Sanders LLP, Richmond, VA, Kevin C. Newsom, Alabama Attorney General, Montgomery, AL, Megan Conway Rahman, Troutman Sanders LLP, George A. Somerville, Troutman Sanders LLP, Ashley L. Taylor, Jr., Troutman Sanders LLP, Anthony F. Troy, Troutman Sanders LLP, Richmond, VA, Michael E. Lacy, Troutman Sanders LLP, Richmond, VA, for John Baldwin in his official capacity as Acting Director of the Iowa Department of Corrections and in his individual capacity, Haywood Belle in official capacity as member of Iowa Board of Corrections and in individual capacity, Frances Colston in official capacity and as member of the Iowa Board of Corrections and in individual capacity, Innerchange Freedom Initiative Program Sued as: Innerchange Freedom Initiative, Iowa Department of Corrections Sued as: John Doe, in his official capacity as Director of the Iowa Department of Corrections and in his individual capacity Filed now under Gary Maynard, Walter Kautzky Sued as: Walter "Kip" Kautzky, Terry Mapes in his official capacity as Warden of the Newton Correctional Facility and in his individual capacity, Gary Maynard, Robyn Mills in official capacity as member of the Iowa Board of Corrections and in individual capacity, Arthur Neu in official capacity as member of the Iowa Board of Corrections and in individual capacity, Suellen Overton in official capacity as member of the Iowa Board of Corrections and in individual capacity, Prison Fellowship Ministries, Walter Reed, Jr in official capacity as member of the Iowa Board of Corrections and in individual capacity, Donald Tietz in official capacity as member of the Iowa Board of Corrections and in individual capacity, Defendants.
ORDER ON MOTIONS IN LIMINE
PRATT, District Judge.
I. INTRODUCTION
807 The parties in this case have submitted several in limine motions, with supporting *807 memoranda and attachments, along with responses and statements in opposition, in anticipation of the non-jury trial in this matter. See Clerk's Nos. 266-286. In the arguments set forth by the parties, however, there is scant recognition that, while the Federal Rules of Evidence are certainly in effect, the evidentiary management of a non-jury trial is simply different than when a court is acting to protect a jury, usually comprised of legal laypersons, from the prejudice risked by non-material or otherwise inadmissible evidence.[1]See Builders Steel Co. v. Comm'r of Internal Revenue, 179 F.2d 377, 379-380 (8th Cir.1950) (providing valuable, and current, guidance to a district court dealing with evidentiary matters during non-jury trial proceedings); Fields Eng'r & Equip., Inc. v. Cargill, Inc., 651 F.2d 589, 594 (8th Cir.1981) (ruling that, because an appellate court presumes that a trial court will base its

findings only on competent evidence and disregard all evidence which is incompetent, there was no error when a district court did not rule on evidentiary objections during a non-jury trial); see also 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2411 (2d ed.1994) (advising a court to avoid excluding evidence in a non-jury trial).
II. MOTIONS IN LIMINE
A. Specific Motions to Exclude Either Witnesses or Other Types of Evidence
As to the motions in limine to exclude specific witnesses and pieces of evidence, this Court will follow the sage advice set forth in Builders, avoiding lengthy arguments on admissibility by reserving determination of materiality and competency until the close of evidence. At trial, objections should be made, for the record, by opposing counsel at the time a party seeks to admit disputed evidence. The Court may overrule or sustain the motion then, but reserves the right to reserve ruling in all instances. This does not mean the pre-trial briefing, by both parties, in this case has gone to waste 0907 it will be a valuable aid to the Court when deciding the competence of the evidence presented. Accordingly, evidence the parties sought to exclude through pre-trial motion may be presented, including, but not limited to:
1) Witnesses Reginald Douglas, Chad Martinson, Kerry Guy, Jerome Ambers, Brad Longenecker, Steven Six, E. Stephen Afeman, Barbara Walwrath, and expert witness Dr. Winnifred Fallers Sullivan.[2]
808 *808 2) Other evidence in the form of Defendants' exhibits SSSSSS, TTTTTT, YYYYYY, ZZZZZZ, AAAAAAA, BBBBBBB, GGGGGGG, HHHHHHH, QQQQQQQ, RRRRRRR, SSSSSSS, TTTTTTT, UUUUUUU, WWWWWWW, Plaintiffs' exhibit 320,[3] and deposition testimony.
B. Motions to Include or Exclude Certain Categories of Evidence
In the same vein, the Court will allow Plaintiffs, always subject to objection, to introduce evidence described in their Motion in Limine to Admit Certain Categories of Evidence at Trial (Clerk's No. 266.1). The Plaintiffs also seek a broad order excluding any evidence exclusively related to justifying the Defendants' actions, if violative of the Establishment Clause, under the penological rationale adopted in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The Plaintiffs are correct when they state the Turner standard does not apply in this case. However, without knowing what particular evidence is being objected to, the Court is hard-pressed to rule on evidence that may be admitted for other reasons quite apart from those based on relevance under Turner. While the Court does not wish to waste valuable time on irrelevant matters, the management of evidence in this case demands wide latitude. The Plaintiffs argue that by specifically refusing to exclude Turner-related evidence, the Court will force them to present Turner-related evidence themselves 0907 wasting valuable time in so doing. The Plaintiffs can rest assured that the Court will engage in no Turner analysis, even on alternate grounds, when deciding the matters of fact and law in this case.[4] Again, however, whether evidence is irrelevant because it applies only to an inappropriate legal standard, like Turner, cannot be something the Court determines beforehand, lest it risk disallowing material evidence.
C. Admissions by a Party-Opponent
The Plaintiffs also seek an order that deems all admissions made in Defendants' Response to Plaintiffs' Separate Statement of Undisputed Material Facts in Support of Plaintiffs' Motion for Summary Judgment ("Response"), and related supplemental factual statements, which were prepared, as required, for summary judgment purposes, as judicial admissions at trial. Apparently, in an effort to comply with the Court's order that the parties submit a joint stipulation of facts before trial, the Defendants have conceded to a more limited version of facts than were allegedly admitted to in the Response and related supplements. A distinction must be made between judicial, as

809 opposed to, evidentiary admissions. Clearly, and the parties do not dispute this, the anticipated *809 joint statement of stipulated facts being prepared for trial should be treated as a judicial admission, binding all parties. As such, no further evidence is necessary to establish the facts contained therein. See State Farm Mut. Auto. Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir.1968) ("The purpose of a judicial admission is that it acts as a substitute for evidence in that it does away with the need for evidence in regard to the subject matter of the judicial admission.") (citing 9 Wigmore, Evidence § 1066 (3d. ed.1940)). To the extent any other admission is being offered by a party-opponent, if that admission has been made unequivocally, there is no showing of a material change in facts that would now render the admission untrue,[5] and otherwise the admission complies with the Federal Rules of Evidence, that admission will be accepted by the Court as an evidentiary admission under Rule 801(d)(2)(A) or, perhaps, an adoptive admission under Rule 801(d)(2)(B). As evidence, such an admission may be rebutted or otherwise explained if disputed by the party against whom it is offered. Admissions made by a party, by formal means, in an adversarial process closely (in this case, meticulously) scrutinized by experienced attorneys, should not be lightly discarded on the grounds such admissions were made for the purposes of summary judgment. See Frymire v. Peat, Marwick, Mitchell & Co., 1991 WL 66381 (N.D.Ill. April 22, 1991) (concluding, in an unreported case, that when a party placed itself in the position of asserting at the motion for summary judgment that certain facts exist without genuine dispute, that party is being disingenuous when it tried to argue such assertions could not be admitted at trial). If not made as a mere concession for the sake of argument, such statements are, after all, supposed to be the truth. If not, judicial proceedings at any stage are meaningless.
III. CONCLUSION
For the reasons set forth above, Plaintiffs' Motion in Limine to Admit Certain Categories of Evidence at Trial (Clerk's No. 266.1) is GRANTED; Plaintiffs' Motion in Limine to Deem Certain Factual Matters Admitted (Clerk's No. 267.1) is DENIED in part and GRANTED in part; Defendants' Joint Motion in Limine to Exclude Testimony of E. Stephen Afeman and Barbara Walwrath (Clerk's No. 268.1) is DENIED; Plaintiffs' Motion in Limine to Exclude All Evidence Exclusively Related to the Turner Standard (Clerk's No. 269.1) is DENIED; Defendants' Joint Motion in Limine to Exclude Plaintiffs' Exhibit 320, Selected Photographs from Prison Inspection, and Motion for Recorded Premise Visit (Clerk's No. 270.1) is DENIED as to Exhibit 320, and ruling RESERVED as to the premise visit; Defendants' Joint Motion in Limine to Exclude Testimony of Dr. Winnifred Fallers Sullivan (Clerk's No. 271.1) is DENIED; Plaintiffs' Motion in Limine to Exclude from Evidence Defendants' Previously Undisclosed Witnesses and Exhibits (Clerk's No. 273.1) is DENIED.
IT IS SO ORDERED.
[1] The Defendants, to their credit, did make the argument that extensive pre-trial evidentiary motions are a potential waste of time. See Defs.' Mem. in Opp'n to Pls.' Mot. in Limine to Exclude All Evidence Related Exclusively to the Turner Standard (Clerk's No. 277) at 1; Defs.' Mem. of P. & A. in Opp'n to Pls.' Mot. in Limine to Admit Certain Categories of Evidence at Trial (Clerk's No. 279) at 1. The Plaintiffs, likewise, argue that materiality of an expert witness should be taken up at trial and through cross-examination. See Pls' Opp'n to Defs.' Joint Mot. in Limine to Exclude Test. of Dr. Winnifred Fallers Sullivan (Clerk's No. 285) at 1-2. Management of time is only one reason, however, to limit arguments regarding evidentiary issues during a non-jury trial, which includes pre-trial motions. Other reasons include the unique nature of appellate review (which presumes a court relies on material evidence), the risk of new trial based on the exclusion of evidence, time lost to oral (not just written, arguments), and the capability of a court to sift through evidence once admitted. Builders, 179 F.2d at 379-380.
[2] This ruling is made notwithstanding the well-reasoned order (Clerk's No. 260) by the Hon. Thomas J. Shields denying Plaintiffs' motion for the depositions of Afeman and Walwrath and declining to compel production of documents in their keeping. Such an order, however, simply does not preclude testimony at trial, especially at a non-jury trial, in which determinations of materiality and competency are usually withheld until evidence has been heard. See U.S. v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (affirming, albeit in a criminal setting, the three-centuries old maxim that "the public ... has a right to every man's evidence").

[3] The Court leaves open, for now, the question of whether a premise inspection of the Newton Correctional Facility will occur.
[4] In their Opposition (Clerk's No. 277), the Defendants request that the Court reconsider its ruling that Turner is inapplicable to Establishment Clause cases in the prison context. The Court will not do so unless presented with new, authoritative law which binds the Court on the matter.
[5] For instance, it is conceivable a party would stipulate to a fact simply in order to make a concession for the purposes of summary judgment, that is, for the sake of argument. Of course, such intent must be made explicit when making the admission.
Save trees - read court opinions online on Google Scholar.

 
 432 F.Supp.2d 862 (2006)
In the matter of AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, et al., Plaintiffs, v.
PRISON FELLOWSHIP MINISTRIES, et al., Defendants.
Nos. 4:03 CV 90074(Lead), 4:02 CV 90447, 4:03 CV 90101.
United States District Court, S.D. Iowa.
June 2, 2006.
8634 *863 *864 Alex J. Luchenitser, Richard B. Katskee, Ayesha N. Khan, Sara Jeannette Rose, Heather Lynn Weaver, Americans United, Washington, DC, Dean A. Stowers, Rosenberg, Stowers & Morse, Des Moines, IA, for Plaintiffs.
Gordon E. Allen, H. Loraine Wallace, Department of Justice, Des Moines, IA, for Defendants.
Anthony F. Troy, Robert A. Angle, Ashley Taylor, Megan C. Rahman, Michael Lacy, Troutman Sanders LLP, Richmond, VA, Brent R. Appel, Wandro, Baer, Appel & Casper, PC, Des Moines, IA, for the Private Defendants.
MEMORANDUM OPINION AND ORDER FOLLOWING TRIAL
PRATT, Chief Judge.
I. INTRODUCTION
The issue to be resolved in this case is whether the contractual relationship between the state of Iowa Department of Corrections ("Dept. of Corrections") and InnerChange Freedom Initiative ("Inner-Change" or "IFI") impermissibly advances religion in violation of the Establishment Clause of the First Amendment.[1] The Court conducted a bench trial on the matter over a fourteen-day period from October 24, 2005, to November 4, 2005, and then from November 28, 2005, to December 1, 2005. The trial included a site visit to the Newton Correctional Facility ("Newton Facility") where the Inner-Change inmate rehabilitation program is located.
Post-trial, the parties filed their Proposed Findings of Fact and Conclusions of Law (Clerk's Nos. 354 and 361), and subsequent Responses (Clerk's Nos. 362 and 363). This Memorandum and Order constitutes the Court's 865 findings of fact and conclusions of law as required under Federal Rule of Civil Procedure 52(a).[2] A *865 separate document entry of the judgment will also be filed. Fed.R.Civ.P. 58(a)(1). To the extent any motions made under Rule 52(c) were deferred by the Court and remain outstanding, they are resolved by this Memorandum and Order. The matter is fully submitted.
The Plaintiffs seek declaratory and injunctive relief as authorized under 42 U.S.C. § 1983.[3] At the outset of this case, the Plaintiffs sought a judicial declaration that the state Defendants violated the United States and Iowa Constitutions by authorizing the operation of InnerChange in the Newton Facility and that Inner-Change and Prison Fellowship Ministries ("Prison Fellowship") violated the United States and Iowa Constitutions, acting under the color of law, by discriminating against inmates based on their religious beliefs in the offering and providing of a values-based pre-release program and by discriminating in employment based on religion with respect to positions partly financed by government funds. As mentioned, supra note 1, the employment claim is now moot.
The injunctive relief sought by the Plaintiffs is a complete prohibition on InnerChange operating within the Iowa correctional system. Short of that, the Plaintiffs seek a prohibition on any state funding 0907direct or in-kind to 0907 support the InnerChange program in any manner. In the alternative, the Plaintiffs urge that should InnerChange

866 be allowed to continseparate *866 ue in Iowa, then a similar type of valuesbased program should be made available to non-InnerChange inmates from a secular standpoint and from the standpoint of other faith traditions. The Plaintiffs also seek the reinstatement of Plaintiffs Chandler and McKeag to Unit E of the Newton Facility where they were housed before the implementation of the Dept. of Corrections 0907InnerChange contract.
The Plaintiffs seek the return of state funds used to pay InnerChange and the return of monies taken from the Inmate Telephone Rebate Fund ("Telephone Fund"), by way of a pro rata refund to each inmate account in an amount equal to that taken to fund the InnerChange program at the Newton Facility. The Plaintiffs dropped their request for nominal damages against the named individual state Defendants. See Stipulation of Dismissal of Req. for Nominal Damages (Clerk's No. 235).
A decision about whether the Establishment Clause is violated by the Defendants' actions does not entail a decision about the ultimate truthfulness of religion, nor the truthfulness of the theological underpinnings of the religious denominations and faith groups represented in this case. See Lemon v. Kurtzman, 403 U.S. 602, 625, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (Lemon I) ("The merit and benefits of these [programs], however, are not the issue before us in these cases. The sole question is whether state aid . . . can be squared with the dictates of the Religion Clauses."). In what appears now to be a bit of theological irony, given that the doctrine of separation between church and state is often viewed as a secular product, Thomas Jefferson rooted his ideas about that doctrine in the religious belief "that Almighty God has created the mind free . . . [and, therefore] the Holy Author . . . chose not to propagate [religion] by coercion . . . as was in his Almighty power to do. . . ." See Virginia Religious Freedom Act, 1786, in The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins 51 (Neil H. Cogan ed., 1997).[4] This Court makes no such assertions about the ultimate source of the law it must interpret. Just as the Court asserts no theological expertise in this matter, the Court is also not an expert in the field of prisoner rehabilitation. The central issue presented before this Court, therefore, is not whether Iowa inmates can 867 be helped in their rehabilitation by religion, but whether the State of Iowa's contract *867 with InnerChange shackles[5] the Plaintiff taxpayers and inmates in a way that violates their rights under the United States and Iowa Constitutions.
II. JURISDICTION
A review' of the Court's subject matter jurisdiction is always warranted, regardless of the stage of litigation. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ("[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level."). The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3), as well as supplemental jurisdiction over the state claims under 28 U.S.C. § 1367(a). Its authority to grant declaratory relief and further remedy is contained in 28 U.S.C. §§ 2201 and 2202. Venue is proper under 28 U.S.C. § 1391(b).
Despite a previous ruling by this Court on the issue, the Defendants raised the matter of Plaintiffs' standing at trial. At the close of the Plaintiffs' case-in-chief, though conceding that the inmate Plaintiffs had standing, Defendants argued that the Iowa taxpayer Plaintiffs and Americans United for Separation of Church and State ("Americans United") failed to offer sufficient evidence to meet the required constitutional standing elements. Trial Tr. at 2038-40. "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of subject matter, the court shall dismiss the action." Fed. R.Civ.P. 12(h)(3). Counsel for the Defendants stated: "[T]hough Plaintiffs had declarations to get over the issue of standing for taxpayers [at the summary judgment stage], they have not put in a single instance of a person coming into court in any way, shape or form and stating that they are a taxpayer and that they pay funds to the State of Iowa." Trial Tr. at 2038-40.
In an Order (Clerk's No. 327) dated November 17, 2005, the Court denied the Defendants' motion, made at trial, to dismiss the claims of the taxpayer Plaintiffs based on standing. In doing so, the Court relied on its Order, filed on April 29, 2005, granting Plaintiffs' motion for summary judgment on the issue of standing. See Mem. and Order on Cross Mot. for Summ. J. at 4-14 (Clerk's No. 212). The Court, rather than relying on its April 2005 Order to decide the Defendants' renewed motion regarding standing, should have reconsidered the Defendants' Rule 12 motion, considering all the evidence received up to the time of the renewed motion. See Delorme v. United States, 354 F.3d 810, 815 (8th Cir.2004) ("The burden to show standing is not a mere pleading requirement, `but

rather an indispensable part of the plainiff's case.'") (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). "Each and every element of the standing requirements `must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.'" See Delorme, 354 F.3d at 815 (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130). "Strict compliance with this jurisdictional standing 868 requirement is mandated." See Delorme, 354 F.3d at 815 (quoting Johnson *868 v. Missouri, 142 F.3d 1087, 1088 (8th Cir.1998) (internal citation omitted)).
Notwithstanding the rule to consider standing in the context of each stage of the litigation, the Court, in its April 2005 Order, did not simply rely on the "declarations" of the taxpayer Plaintiffs themselves regarding standing, but also relied on the Defendants' own Statement of Undisputed Material Facts (Clerk's No. 94). Pls.' Ex. 479. As their second undisputed fact in this case, the Defendants claimed that "Plaintiffs Carol Delp, Ardene McKeag, Dorothy Redd, and Sandra Sobotka (collectively "Taxpayer Plaintiffs") are residents of Iowa who pay taxes to the State of Iowa." Defs.' Statement of Undisputed Material Facts in Supp. of Defs.' Mot. for Summ. J. Based Upon Lack of Subject Matter Jurisdiction (Clerk's No. 94) ¶ 2 (Pls.' Ex. 479). Defendants' third undisputed fact is that "Plaintiff Americans United for Separation of Church and State ("AU") is a non-profit advocacy organization whose self-described purpose is to preserve the constitutional principle of church-state separation. AU has members who reside in and pay taxes to the State of Iowa." Id. ¶ 3. The Plaintiffs' response to the Defendants' statement of facts clarified that Plaintiffs Ardene McKeag, Dorothy Redd, and Sandra Sobotka did not assert they were Iowa taxpayers0907a fact that was then admitted by the Defendants 0907thereby leaving Carol Delp as the named Iowa taxpayer Plaintiff. Defs.' Reply to Pls.' Resp. to Defs.' Statement of Undisputed Material Facts in Supp. of Defs.' Mot. for Summ. J. Based Upon Subject Matter Jurisdiction (Clerk's No. 131) ¶ 2 (Pls.' Ex. 481). As for Americans United, the Plaintiffs made no further clarifications to the Defendants' undisputed claim that Americans United is an organization that advocates for the principle of church-state separation with members who reside in and pay taxes to the State of Iowa. Id. ¶ 3.
The Defendants cannot argue, as they did when objecting to the inclusion of pretrial admissions as evidence, that these statements were simply made for the sake of summary judgment. Rather, by making a statement of undisputed fact, the Defendants were telling the Court that it need not concern itself with these jurisdictional or otherwise material facts as they were admitted by the adverse party. "By presenting to the court . . . a pleading, written motion, or other paper, an attorney . . . is certifying that to the best of the person's knowledge, information, and belief, formed after inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support. . . ." Fed.R.Civ.P. 11(b)(3). The Court takes the Defendants at their word. Nothing changed regarding these facts at trial. The Defendants did not withdraw their previous statements or notify the Court they wished to do so when making their Rule 12 motion.
The Defendants also did not argue that the taxpayer and organizational Plaintiffs failed to meet the other elements of constitutional and prudential standing. Even if they had so'argued, the evidence offered at trial shows that the taxpayer and organizational Plaintiffs suffered a concrete, imminent, and particularized injury in fact, that the injury is traceable to the Defendants, and that the injury can be redressed through a remedy ordered by this Court. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; see also Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (affirming that a court should also assure prudential elements, are met 0907that one litigant is not raising another's legal rights, that the grievance is particularized, and that the complaint falls within the zone of interests protected by the law invoked). Accordingly, after reviewing all the evidence entered at the close of the 869 Plaintiffs' case-in-chief, the Court finds that it retains subject matter jurisdiction over the claims *869 of the taxpayer and organizational Plaintiffs.
As stated above, the Plaintiffs clarified in their responses that Ardene McKeag, Dorothy Redd, and Sandra Sobotka are not Iowa taxpayers, or at least are not asserting that fact. Of course, given the reasons for, and the nature of, the remedy requested, the exclusion of these three Plaintiffs would not change the remedial outcome. Nevertheless, they have a right to bring their claims alongside the other Plaintiffs because they retain standing as contributors to the Telephone Fund.[6]See Amended Compl. (Clerk's No. 44) ¶¶ 14, 15a, 15b (setting forth their claims, describing in great detail their relationship with Dept. of Corrections inmates, and stating these plaintiffs contributed and continue to contribute to the Telephone Fund).

The Defendants argued that any standing based on contributions to the Telephone Fund[7] is without merit because "[n]o one came forward and said they were putting money into the telephone fund and using the telephone fund." Trial Tr. at 2039. Again, based on the Defendants' own statement of undisputed material facts, the Court relies on their assertion that "[all] the Plaintiffs have deposited money into the telephone accounts of the Inmate Plaintiffs, and this money was spent by the Inmate Plaintiffs to make telephone calls, thus resulting in profits that funded the Inmate Telephone Rebate Fund." Statement of Undisputed Material Facts in Supp. of Defs.' Mot. for Summ. J. Based Upon Lack of Subject Matter Jurisdiction ¶ 7 (Pls.' Ex. 479); see also Defs.' Reply to Pls.' Resp. to Defs.' Statement of Undisputed Material Facts in Supp. of Defs.' Mot. for Summ. J. Based Upon Subject Matter Jurisdiction (Clerk's No. 131) ¶ 7 (Pls.' Ex. 481) (repeating the undisputed fact). Accordingly, no further evidence was necessary at trial to convince the Court that the Plaintiffs all contributed to the Telephone Fund. Contribution, however, is not enough. To be conferred standing, the Telephone Fund Plaintiffs must also show a concrete injury caused by the Defendants for which there is a remedy.
The Defendants argue that the Plaintiffs can show no actual injury 0907and, therefore, have no standing to challenge the Dept. of Corrections' decision to allocate funds to InnerChange from the Telephone Fund 0907 because Iowa statutory and regulatory law gives the Dept. of Corrections discretion to use the Telephone Fund "for the benefit of inmates." See Iowa Code § 904.508A; Iowa Admin. Code r. 201-20.20. The Defendants argue that this case is 870 analogous *870 to Arney v. Simmons, where the court held that inmates lacked a protected property interest in the use of inmate telephone funds because the authorizing state statute did not mandate that all expenditures from an inmate benefit fund had to benefit inmates directly. See 923 F.Supp. 173, 177-78 (D.Kan.1996). Because the plaintiffs in Arney were alleging a § 1983 claim, the court specifically noted that for the claim to be valid, "[the plaintiffs'] allegation of error in defendant's management of the DOC-IBF [Department of Corrections Inmate Benefit Fund] . . . must be of constitutional dimension." Arney, 923 F.Supp. at 177. Since the court found that the state statute did not "substantively restrict the discretion of state officials," no constitutionally protected property interest arose in the management of the DOIBF. Id.
The language of the state statute and regulations in this case 0907providing that the Telephone Fund be used for the benefit of prisoners0907creates the legitimate expectation that the Telephone Fund cannot be taken pursuant to an illegal state policy. The Plaintiffs have presented sufficient evidence, at each respective stage in the litigation, that the state Defendants erred in administering the Telephone Fund by using its proceeds to pay InnerChange and Prison Fellowship in violation of the Establishment Clause, which specifically limits how state or federal government funds can be spent. See, e.g., Flast v. Cohen, 392 U.S. 83, 103, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) ("Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general."). Regardless of the amount of discretion available to the Dept. of Corrections under Iowa law to administer the Telephone Fund, that discretion does not extend to the violation of the establishment of religion clauses contained in the state and federal constitutions. Accordingly, because the Telephone Fund contributors have a protected interest in the funds being used legally for the benefit of prisoners, the Court retains jurisdiction over the former taxpayer Plaintiffs Ardene McKeag, Dorothy Redd, and Sandra Sobotka as the Telephone Fund Plaintiffs.
III. STATEMENT OF FACTS
A. The Transformational Model
The facts presented here encompass the entire history of the InnerChange program in Iowa. The Defendants have, throughout the litigation, taken the position that the Court should only consider evidence of current InnerChange policies and practices in its analysis, arguing that a focus on former contracts and circumstances is fruitless. The Defendants cite City of College Station v. City of Bryan, 932 F.Supp. 877, 885 (S.D.Tex.1996) for their proposition that a "[c]ourt must look to the facts in existence at the time an injunction issues. . . ." City of College Station was an anti-trust and tort preliminary injunction case involving a dispute over electricity transmission fees. This case, however, involves the Establishment Clause, which necessitates a review of the

entire history of the challenged public funding. See Zelman v. Simmons-Harris, 536 U.S. 639, 655, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (reminding courts that an Establishment Clause analysis takes place from the perspective of the "the reasonable observer" who must be "familiar with the full history and context" of the challenged program). The historical practices in this case, even those that have been discontinued, shed considerable light on the state's purpose in implementing the InnerChange program, the actual effect of the state's funding, and whether the funding results in an improper entanglement with religion. Lemon I, 403 U.S. at 612-13, 91 S.Ct. 2105.

871 *871 The InnerChange program was developed and is operated by Prison Fellowship, a 501(c)(3) Christian nonprofit corporation incorporated in the District of Columbia, "whose mission is to exhort, equip and assist the Church in its ministry to prisoners, ex-prisoners, victims, and their families, and in its promotion of biblical standards of justice in the criminal justice system." Pls.' Ex. 73 (Field Guide at 2). In addition to Iowa, InnerChange operates treatment programs in Texas, Minnesota, Kansas, Tennessee, Arkansas, and Missouri. Though InnerChange is treated as a subsidiary of Prison Fellowship, InnerChange is also a separate 501(c)(3) non-profit corporation incorporated in Virginia. Prison Fellowship works on a variety of fronts and collaborates with groups and individuals across the political spectrum on issues related to prison reform and criminal justice. Prison Fellowship's own religious commitments can best be characterized as Evangelical Christian in nature.[8] This commitment is most evident in the very specific Prison Fellows Statement of Faith that all Prison Fellowship and InnerChange employees are required to sign:

We believe in one God, Creator and Lord of the Universe; the co-eternal Trinity: Father, Son, and Holy Spirit.

We believe that Jesus Christ, God's Son, was conceived by the Holy Spirit, born of the Virgin Mary, lived a sinless life, died a substitutionary atoning death on the cross, rose bodily from the dead, and ascended to heaven where, as truly God and truly man, He is the only mediator between God and man.

We believe that the Bible is God's authoritative and inspired Word. It is without error in all its teachings, including creation, history, and its own origins, and salvation. Christians must submit to its divine authority both individually and corporately, in all matters of belief and conduct, which is demonstrated by true righteous living.

We believe that all people are lost sinners and cannot see the Kingdom of Heaven except through

872

the new birth. *872 Justification is by grace through faith in Christ alone. We believe in one holy,

universal, and apostolic Church. Its calling is to worship God and witness concerning its Head,

Jesus Christ, preaching the Gospel among all nations and demonstrating its commitment by

compassionate service to the needs of human beings and promoting righteousness and justice.

We believe in the necessity of the work of the Holy Spirit for the individual's new birth and growth to maturity and for the Church's constant renewal in truth, wisdom, faith, holiness, love, power, and mission.

We believe that Jesus Christ will personally and visibly return in glory to raise the dead and bring salvation and judgment to completion. God will fully manifest His Kingdom when He establishes a new heaven and new earth, in which He will be glorified forever and exclude all evil, suffering, and death.

Pls.' Ex. 79. While Prison Fellowship's Statement of Faith contains beliefs common to many types of Christian groups, it is also significantly different in many respects.

873 As Dr. Winnifred Fallers Sullivan ("Dr. Sullivan")[9] explained at trial, Prison Fellowship *873 is not an organized church, but a para-church organization focused on being in ministry to prisoners and their families. Over the past two centuries, para-church mission-minded agencies have been common; examples include the American Bible Society, the American Sunday School Society and various missionary agencies. Contemporary Evangelical Christians do not form a religious denomination, but rather comprise a group characterized by a set of beliefs and

a culture that extends across Protestant Christian denominational boundaries. Accordingly, members of different, formally-structured Christian denominations could consider themselves also to be Evangelical Christians.[10] As an Evangelical Christian organization, Prison Fellowship shares the predominate characteristics common to Evangelical Christianity.
As Dr. Sullivan explained, though no formal membership requirements exist to identify an Evangelical Christian, historians and sociologists have identified several strong, associated characteristics. Foremost, Evangelical Christians place great emphasis on the Bible as the inerrant, sole source of authority for Christian teaching and personal morality. Evangelical Christians also believe that true conversion is an adult religious experience, most commonly referred to as being "born again." Not only is this experience paramount, so is the duty of every Evangelical Christian to evangelize0907that is, to spread the good news of their faith and invite others to share the same adult conversion experience.
Evangelical Christianity tends to be anti-sacramental, which means it downplays the traditional sacramental Christian events0907baptism, holy communion or Eucharist, marriage, ordination, etc. as 0907 appropriate ways to interact or meet with God. Along with initial adult conversion, contemporary Evangelical Christianity emphasizes religious experience0907the actual experience of God in the believer's life. Evangelical Christians, therefore, are receptive to overt, actual displays of this experience much like those manifested in Pentecostal Christianity. Additionally, for Evangelical Christians, everything that happens in the world is understood through and 874 interpreted by religious language. *874 For many Evangelical Christians, the belief in creationism and suspicion of evolutionary theory is also present. Finally, the Evangelical Christian stance toward religious institutions is one of suspicion. This is most obviously seen in the worship style. Whereas traditional, organized religious groups, such as Roman Catholics, the Greek Orthodox, and Lutherans, employ a structured, highly liturgical style of worship, Evangelical Christian worship is free form with individual pastors given authority to determine how services are planned. For instance, Evangelical Christians have embraced contemporary music forms and multimedia presentations.
These characteristics, along with the theological commitments in the Prison Fellowship and InnerChange Statement of Faith, place the Evangelical Christianity of Prison Fellowship and InnerChange at odds with members of Christian groups who would not consider themselves to be part of the Evangelical Christian camp. [11] For instance, the anti-sacramental beliefs contained in the Prison Fellowship and InnerChange religious views run counter to the core doctrinal beliefs of several Christian groups in which the celebration of the Mass or Eucharist is a central, necessary part of the Christian life. The Prison Fellowship and InnerChange theological position would be suspicious, if not contemptuous, of Roman Catholic reliance on papal authority, Marian devotion, and the veneration of saints. The Prison Fellowship and InnerChange belief in the substitutionary and atoning death of Jesus, which reflects a legalistic understanding of the sacrifice of Jesus, likewise, is not shared by many Christians. The Prison Fellowship and InnerChange belief in the literal, bodily resurrection of Jesus is also not shared by many other, non-Evangelical Christians. Similarly, belief in an imminent, personal, and visible second coming of Jesus Christ, as held by Prison Fellowship and InnerChange, does not comport with the belief held by other non-Evangelical Christians that, if a second coming of Christ occurs, its nature is unknown, or is more spiritualized.
InnerChange was created to meet the needs of state or federal prisons for a private provider who could deliver a 875 values-based[12] prisoner rehabilitation program. *875 InnerChange's religious commitments mirror those of
Prison Fellowship0907 the parties stipulated, in fact, that what is taught in the InnerChange inmate program does not contradict the Prison Fellowship Statement of Faith. The InnerChange program is a faith-based program designed to transform prisoners into good citizens, to reduce the recidivism rate of current inmates, and to prepare inmates for their return to society by providing educational, ethical, and religious instruction. In its own words:
This mission of InnerChange is to create and maintain a prison environment that fosters respect for God's law and rights of others, and to encourage the spiritual and moral regeneration of prisoners. Therefore, they may develop responsible and productive relationships with their Creator, families and communities.

Pls.' Ex. 35 (InnerChange website, Sept. 9, 2005). The InnerChange program meshes the Evangelical Christian religious message of its parent organization, Prison Fellowship, with a pre-release correctional model. This produces a unique approach to pre-release prison programming specific to InnerChange, which InnerChange refers to as a transformational, rather than a therapeutic, model. Rather than exclusively relying on and utilizing scientific and medical theories to address criminal behavior, InnerChange incorporates a supernatural approach to an inmate's recidivist behavior by locating that inmate's problems in disobedience to God, or sin. The only remedy to the problem of sin, InnerChange maintains, is through a miraculous delivery by God 0907specifically, God in Christ.[13]

InnerChange's own explanation, contained in a document entitled "InnerChange Freedom Initiative White Paper" ("White Paper"), published on the InnerChange website, sums up well the testimony and evidence 0907including curriculum materials0907offered at trial regarding InnerChange's unique approach as it is practiced at the Newton Facility:

On the surface, IFI may look like a type of therapeutic community. Both therapeutic and transformational prison programs operate through small groups and seek to equip members for life after prison. A therapeutic model is dependent on the interpretation of life through man's eyes and is based upon understandings of the social sciences.

Therapeutic communities seek to equip prisoners for life after prison by learning to manage behavior. Support groups and classes connect prisoners with a loving community of like-minded people who can encourage them and give affirmation. Healing one's relationship with others is the primary focus.

The IFI model seeks to "cure" prisoners by identifying sin as the root of their problems. Inmates

learn how God can heal them permanently, if they turn from their sinful past, are willing to see the

876

world through God's eyes, and surrender *876 themselves to God's will. IFI relies and directs

members to God as the source of love and inner healing. Members then build on this new

relationship to recast human relationships based on Biblical insights.

In summary, IFI and therapeutic models have some similar methodologies, but very different goals, and are rooted in entirely different philosophies. The therapeutic model seeks first to reconcile the relationship of a prisoner to other human beings. The IFI model, in contrast, seeks to reconcile people through changing their relationship to God.

A key concept in Chuck Colson's[14] writings is that you must be born again. As inmates are transformed by the power of God, they learn to turn from a sinful past, recognizing that "sin is not simply the wrong we do our neighbor when we cheat him, or the wrong we do ourselves when we abuse our bodies. Sin, all sin, is a root rebellion and offense against God ["] (Colson 1660907All references are to Chuck Colson's Loving God). Admitting our sinfulness and asking God's forgiveness is the first step. "We have the capacity to change anything about our lives . . . but we cannot change our own sinful nature." (144). Repentance is a change of mind and heart away from sin and toward God. . . .

Repentance and reconciliation are an ongoing state of mind and do not simply exist in one moment in time. IFI emphasizes this realization, and fosters humility and a teachable attitude, that in turn, creates opportunities for prisoners to break free from old habits. They learn new life skills, rooted in Biblical principles and God turns their lives around.

"Repentance is an inescapable consequence of regeneration, an indispensible part of the conversion process that takes place under the convicting power of the Holy Spirit. But repentance is also a continuing state of mind. We are warned, for example, to repent before partaking of communion. Also, believers prove their repentance by their deeds. Without a continuing repentant attitude a 0907 persistent desire to turn from our own nature and seek God's nature Christian growth is impossible. Loving God is impossible." (Colson 109).

Pls.' Ex. 35 at 5-6 (emphasis in original).[15] InnerChange is considered a unit-based residential treatment program by the Dept. of Corrections. Unit-based residential treatment programs are also referred to as "therapeutic communities" or "quasitherapeutic communities."

The InnerChange Field Guide is the foundational document distributed to Dept. of Corrections inmates who are interested in the program and attend Introductory and Orientation sessions. Upon acceptance into the program, each InnerChange inmate at the Newton Facility is given a copy of the Field Guide. The opening paragraph is entitled "An Overview of IFI" and states:

The InnerChange Freedom Initiative (IFI) is an intensive, voluntary, faithbased program of work

and study within a loving community that promotes transformation from the inside out through the

877

miraculous power of God's love. IFI *877 is committed to Christ and the Bible. We try to base

everything we do on biblical truth. In other words, IFI is Christ-centered and Bible-based.

Pls.' Ex. 73 at 2. The Field Guide goes on to define InnerChange's purpose:

The purpose of IFI is to

[] Reduce the rate of re-offense and the resulting social costs

[] Provide a positive influence in prison

Our ultimate goal is to see ex-prisoners become contributing members of society, by becoming responsible leaders in their family, church and community.

Id. (emphasis in original). The contrast between what InnerChange would consider a traditional, therapeutic prisoner rehabilitation model based in current, secular approaches and InnerChange's own self-described transformational model runs throughout InnerChange's curriculum and practice at the Newton Facility. This is especially true, as will be seen below, in InnerChange's application of the transformational model to drug abuse rehabilitation and treatment. Contained within the InnerChange White Paper and InnerChange curriculum materials is a chart that sets out eleven major distinctions between the therapeutic model and InnerChange's transformational model, as understood by InnerChange and Prison Fellowship:

Transformation Model:
0905 Transformed persons seek to appropriate God's ways as revealed through Biblical truth.
0905 Criminal Behavior is a manifestation of an alienation between the self and God.
0905 Transformation enables prisoners to see the world and others as God sees them.
0905 Acceptance of God and Biblical principles results in cure through the power of the Holy Spirit.
0905 Transformation emphasizes the change in behavior as a result of encountering Jesus Christ.
0905 Insight into one's problems is gained from reading, understanding, and applying Biblical

Therapeutic Model:
0905 Therapy seeks to manage symptoms acco to human understanding.
0905 Criminal behavior is a result of an a of self from society.
0905 Therapy seeks to help prisoners see h the world can meet their needs.
0905 Relief of symptoms is dependent on th power of human love and commitment through support groups and community.
0905 Therapy emphasizes the management of behavior as it impacts on others.
0905 Insight into one's problems is gained through group and individual interact

principles.

0905 All problems in life arise from a condition of sin.

0905 Problems in life arise may arise from inability to have one's needs met.

0905 Focuses on honesty with self and God first; honesty with others will follow.

0905 Focuses on honesty with self and othe

0905 Focuses on the power of the Creator. It holds up Christ as the source of that power and work of the Holy Spirit as the way
to true change.

0905 Focuses on the power of Creation. The may or may not point to some higher power.

0905 The quality of our relationships to each other is conditioned by the quality of our

0905 Mental health and healthy relationshi are dependent on the expression and aff

878 *878

relationship to Jesus Christ and his love as reflected in others.

of our needs.

0905 Transformation happens through an instantaneous miracle; it then builds the prisoner up with familiarity of the Bible.

0905 Therapy seeks gradual change of self one interacts with one's environment.

Pls.' Ex. 35 at 5-6.

InnerChange posits that an inmate's anti-social attitude and self-destructive behavior can only be overcome through an intensive religion-based program that is able to "rewire" that inmate's most basic emotional and merttal structures. In the InnerChange model, an authentic religious experience is the means by which society's civic, or secular, goal0907a rehabilitated, prosocial, and productive ex-inmate is 0907 met. A suitable analogy is that InnerChange's intensive religious indoctrination of inmates is like an emotional or volitional chemical therapy treatment. The InnerChange experience roots out the cancerous, harmful attitudes and disorders that keep an inmate from knowing and experiencing his authentic self. All analogies fall short, of course. InnerChange does not consider its treatment only a means0907like chemical treatments 0907that fade away leaving the healthy organism, but also an end in itself. At the conclusion of the Field Guide's orientation materials, InnerChange includes a blessing: "May God bless you for the time you have spent with us reading this material. . . . Remember God loves you wherever you are. We pray that you will be aware of God's presence and power at all times." Pls.' Ex. 73 at 10. This blessing is consistent with the hope contained just a few lines before: "Above else, we pray that you will discover the transforming love of Jesus Christ." Id.

B. Choosing a Pre-release Rehabilitation Program

Walter "Kip" Kautzky ("Kautzky") directed the Dept. of Corrections from July 1997 until December 31, 2002, the period in which the Dept. of Corrections chose to contract with InnerChange. Kautzky has known Charles Colson for over twenty years and maintained a close working relationship with Prison Fellowship over the course of his career directing correctional state agencies, including making personal donations to Prison Fellowship. When he worked for the state of North Carolina in the early 1980s, Kautzky facilitated Colson's mission to set up a statewide prison outreach team of volunteers. Kautzky testified in positive terms about the important role Prison Fellowship played in developing post-release transitional services for North Carolina inmates. Kautzky also worked with Colson in the state of Washington, where Kautzky was subsequently employed. Amos Reed, director of the Washington agency that oversaw correctional institutions, invited Colson to Washington state to help during a transition within the state correctional institutions. Kautzky and Colson consulted on the problems facing the Walla Walla State Penitentiary with Prison Fellowship strategies in mind. Together, Kautzky and Colson

visited prisoners on death row and in other parts of the Walla Walla, Washington, prison for several days, going from cell to cell to talk and sometimes pray with inmates. Colson was interested in establishing a volunteer network of church communities to connect with Washington inmates. Kautzky admits that, during his career, "I've tried to help Prison Fellowship along the way." Trial Tr. at 939. Again, when employed in the Colorado correctional system, Kautzky offered continuing support to the already established Prison Fellowship program by consulting with the Prison Fellowship regional director.
879 *879 Coming to Iowa, Kautzky testified he was not interested in establishing a connection between Prison Fellowship and the Dept. of Corrections institutions. Nonetheless, Prison Fellowship and InnerChange clearly identified Kautzky as an ally. Thomas Pratt, President of Prison Fellowship, sent Kautzky a letter, dated December 7, 1999, in which Pratt attached his "Monday Morning Message" created for Prison Fellowship-wide dissemination. Pls.' Ex. 186. In that attachment, which extolls the way the "Lord's hand" brought InnerChange to Iowa, Pratt characterizes Kautzky as:
[T]he very same man who had facilitated Chuck's [Colson] visits to Walla Walla, Washington, in the early '80s. He is the man who enabled our work in Colorado. The same man who had appeared, unbeknownst to us in a very crucial meeting early in the North Carolina experience and stood in our corner against a very hostile state chaplain when things looked their darkest for the project.
Id. at 2. In addition to his prior knowledge about Prison Fellowship's volunteer-based programs focusing on postrelease services and prisoner visitation, Kautzky was also aware of the current InnerChange in-prison treatment program operating in Texas. Kautzky learned about the program from his Texan counterpart, Wayne Scott, who Kautzky met frequently through the American Association of State Correctional Administrators. Other persons within the state of Iowa also contacted Kautzky about InnerChange and, in particular, about bringing the program to the state. A key Iowa proponent of InnerChange was ex-state legislator and, at the time, Iowa Parole Board Member Chuck Hurley. In his 1999 letter to Kautzky, Pratt described Hurley as:
[T]he same person who after reading a brochure on IFI Houston and Humaita Prison, Brazil,[16] contacted Jerry Wilger[17] and inquired about bringing IFI to Iowa. He is the same man who asked Jerry to pray with him about an IFI in Iowa and proceeded to carry on a time of prayer and discussion over the phone for a month and a half every Tuesday morning. He is the same man who went to the Governor about IFI and within a week obtained his agreement. Next he went to the Secretary [sic] of Corrections who also agreed in short order. And who was the that Secretary [sic]? None other than Mr. Kip Kautzky.
Id. Kautzky testified that Hurley's promotion of InnerChange arose from Hurley's interest in a faith-based, Christian rehabilitation program, which Kautzky described in contrast to his own interest in a merely "valuesbased" inmate rehabilitation program. Trial Tr. at 957.
Kautzky's arrival in Iowa coincided with the completion of the Iowa Dept. of Correction's newest facility, the medium-security campus just outside of Newton, Iowa0907the Newton Facility. The Newton Facility started receiving inmates around August 1997. By all accounts, when Kautzky took over the Dept. of Corrections, prison overcrowding was the primary state-wide institutional concern. The Newton Facility provided an important safety 880 valve function, primarily because it relieved the enormous overcrowding pressure *880 at the Anamosa State Penitentiary. The pressure was so acute that low-risk security inmates were moved to the Newton Facility even before construction was complete.
The need to move inmates quickly under tight budgetary constraints affected construction at the Newton Facility. The structure of Living Unit E, originally designed to mirror Units C and D at the Newton Facility, was changed to reduce costs. Unit E's wooden doors and "dry cells," discussed in More detail below, were not originally constructed to provide an honor unit setting to reward good behavior, but rather as a result of budgetary constraints. As is regular practice, the new Newton Facility inmates helped construct fencing and sidewalks to save costs and keep them busy.

The accelerated inmate transfer to the Newton Facility from other institutions, especially Anamosa, meant that a full menu of treatment programs and classes were not yet in place for the arriving inmates. Prison administrators rank effective programming a close second to overcrowding when addressing prisoner security and safety concerns. Besides inprison jobs, treatment programming and classes serve the invaluable purpose of providing activities and stimulation for inmates. This is in addition to the Iowa Dept. of Corrections' responsibility to ensure that inmates have access to classes necessary for early release determinations by the Iowa Parole Board.
Inmate programming can be a chronic problem. On July 12, 2002, after the implementation of InnerChange, Kautzky reported to the Iowa Board of Corrections that 400 offenders, department-wide, were still serving sentences longer than necessary because of the lack of substance abuse programming. There is no question that in the period the Newton Facility came on line, the Iowa Dept. of Corrections faced a severe budget crisis, which meant limited funding for prisoner space[18] and all-important programming.
Facing difficult budgetary constraints, prison overcrowding, and lack of appropriate programming, Kautzky and his leadership team set about searching for innovative ways to meet the programming challenges at the Newton Facility. As part of that process, Kautzky directed Kenneth Burger ("Burger"), the Coordinator for Offender Services at the time, to gather information about the InnerChange program in Texas and to determine whether a similar program could work in Iowa. Kautzky ordered the inquiry into InnerChange despite being aware of significant constitutional issues that could arise from a joint venture with Prison Fellowship and InnerChange. Additionally, Kautzky ordered a search for any other organization that could deliver the same type of services. Burger and others stated they either could not or did not locate any genuine competitors for the InnerChange program in 1998 and 1999. This is in spite of the testimony offered by Norman Cox, a vice-president of Prison Fellowship and the National Director of InnerChange, who stated that, by the late nineties, there were eight different service providers at 0907 least two providing values-based programming in 0907 operation. Trial Tr. 2205-07. Several years later, one of those providers, Emerald Correctional Management ("Emerald"), emerged several 881 years later and submitted a response to the Request for Proposal ("RFP") sent out by the Dept. of Corrections *881 on June 8, 2005. The only organization corrections officials found in 1998 that offered a long-term, valuesbased, residential program with excellent postrelease aftercare services was InnerChange.
Identifying InnerChange as a possible vendor, however, did not mean that every Iowa corrections official preferred a values-based program built on a religious model. The Court finds credible the testimony of Burger, who was part of the team that visited the Texas InnerChange program. Initially, Burger hoped to design a program in Iowa based on the InnerChange model without the overtly religious instruction included in InnerChange's transformational approach. Burger was especially intrigued by the idea of placing under one program umbrella, in the same shared physical setting, all the required inmate treatment classes and counseling experiences that could be completed over a period of several months. What the InnerChange model also contained was a superb post-release aftercare program that, according to Burger and the other correctional officials, is essential to reducing recidivism.
After adding up the cost of initiating a similar program in Iowa, however, Burger quickly came to the conclusion that the cost for the state of Iowa would preclude setting up a similar, but independent program. With its donorsupported cost structure, the InnerChange program could offer the same in-prison and post-release components for much less money. Given the state's budgetary constraints, Burger and others concluded that the InnerChange program was really the only way to provide a complete menu of programming at the Newton Facility.
The correctional officials looking for a values-based program genuinely believed that universal, secular values could be instilled in offenders, regardless of any religious context in which they might be offered. Warden Terry Mapes ("Warden Mapes"), eventually the Warden at the Newton Facility, stated that the religious elements of InnerChange did not bother him. Mapes testified that the "Christcentered biblical teaching . . . is a mechanism to the values-based instruction, just as if they done the Dr. Seuss education program. That is another method of reaching and achieving the same goals." Trial Tr. at 1457. Dept. of Corrections officials credibly testified that they would be delighted to offer a broad spectrum of values-based programming utilizing various religious and secular contexts if the budget allowed them to do so.

The pragmatic concerns of on-site correctional administrators at the Newton Facility and the Dept. of Corrections director's office, who needed to provide inmate programming at a cost within their budget, combined with Kautzky's own positive view of Prison Fellowship's role in rehabilitating prisoners through spiritual transformation, meant that the selection of InnerChange as a pre-release service provider was a foregone conclusion by the time 882 an official RFP[19] from the Dept. of *882 Corrections went out in August 1998. In February of 1999, Burger presented a report to the Iowa Dept. of Corrections Board ("Corrections Board"), explaining that InnerChange's religious nature and bible-based curriculum were components of the program. The Corrections Board approved the concept and encouraged the Dept. of Corrections to move forward with the program. Burger did not consider the InnerChange venture a major department initiative, but an experimental program consistent with the Iowa Dept. of Corrections continuing search for innovative solutions to inmate rehabilitation. Supporting Burger's assessment is that the annual expenditure under the InnerChange contract is a small fraction of the $292 million Dept. of Corrections annual budget from general state funds, and an additional $35 million coming in the form of non-general funds. Trial Tr. at 1866.
Before the RFP release on April 9, 1998, the Area Director of Prison Fellowship, Terri Hout, sent a packet to John Mathes, the Newton Facility Warden from 1978 to December 2000 ("Warden Mathes"), at Kautzky's request. The packet contained information about the Texas InnerChange program. Pls.' Ex. 187. The cover letter's last sentence wishes Warden Mathes a "blessed Easter holiday" and is signed, "In Christ's Service, Terri Hout." Id. In a letter dated April 27, 1998, some local Newton Area ministers received an invitation from Terri Hout to attend an informational event at two local churches0907First United Methodist Church and First Assembly of God 0907where InnerChange staff from Houston, Texas, "will share the vision, outline the program, and discuss the role of the local church and volunteers in Iowa's InnerChange prison unit." Pls.' Ex. 188. The letter celebrates the pre-RFP negotiations already taking place:
During the past few weeks there have been serious discussions between Prison Fellowship's Inner-Change staff and Governor Branstad's office, members of the Iowa legislature, the head of the Iowa Corrections, and representatives of the Iowa Parole Board about bringing Inner-Change to a prison in Iowa. As a result of these discussions, we are pleased to announce that InnerChange staff will be coming to Iowa the week of May 11 to make a determination about Iowa being the new Inner-Change site.
Id. In a memo dated the same day, Kautzky described the same event to Dept. of Corrections Deputy Directors, Wardens, and Superintendents, requesting they attend a May 14, 1998, luncheon in order to learn more about the InnerChange program and ask questions about its mission and organization. Pls.' Ex. 189. On May 15, 1998, Wilger sent Kautzky a thank you letter regarding the InnerChange trip and enclosed a copy of the Texas RFP for Kautzky's review. Pls.' Ex. 190. Kautzky also received from Wayne Scott the Texas version of an RPF from InnerChange to use as template for Iowa's own RFP form.
Kautzky, and the Defendants generally, characterized the exchange of letters, memos, telephone calls, and meetings between the Dept. of Corrections, InnerChange, Prison Fellowship, state legislators, and parole board members as reasonable discussions attendant to any RFP process. These discussions, the Defendants maintain, are necessary to discover more about the provider being considered, to clarify, the state's own correctional 883 rehabilitation needs, and to *883 identify possible sources of funding. Not all the correctional officials were completely on board with the InnerChange program. Warden Mathes was interested in a values-based, rather than a purely cognitive, rehabilitation program, but worried about what he viewed as the inherent conflict in the different missions of the Dept. of Corrections and Prison Fellowship.
Evidence shows that InnerChange teams visited Iowa at other times and did much more than simply discuss the program with Dept. of Corrections and other state officials. Before the August 1998 RFP went out, as well as before a contractual agreement was reached, the Dept. of Corrections allowed InnerChange direct access to Iowa inmates at several Dept. of Corrections institutions to conduct InnerChange orientation classes that included, among other things, bible studies and Christian worship services. Straining credibility, Kautzky described the pre-RFP, orientation classes by InnerChange as mere volunteer religious exercises similar to those provided by any other volunteer religious group that inmates were free to attend. The distinction between a local

church led by a minister and lay volunteers providing a worship service in a prison, and a potential private vendor who is in the midst of pre-negotiating contractual terms with the state for a contract valued in the hundreds of thousands of dollars is, of course, substantial. Presenting the InnerChange program for inmates to consider supports the Plaintiffs' claim that the RFP process was merely a formality and that the Dept. of Corrections intended InnerChange to be the pre-release rehabilitation services provider from the time InnerChange was initially contacted.
More evidence that, even before the RFP release, the InnerChange program was the only real competitor in the search for a values-based provider is a letter, dated July 4, 1998, from Kautzky to Rick Nelson, President of Blueprint for Life, Inc., requesting Nelson's help to secure volunteers for the program. The subject heading reads: "Prison Fellowship0907Inner Change Program." Pls.' Ex. 196. Kautzky makes clear that, though the RFP process must be completed "to meet state procurement requirements," the Inner Change program was coming to Iowa and informs Nelson that "when the program is implemented there will be a significant need for volunteers." Id. According to Warden Mathes, he had no doubt that by the date of the letter to Nelson, Kautzky had decided to go ahead with the InnerChange program. Trial Tr. 1695-96.
Finally, in August 1998, the Dept. of Corrections issued a "Request for Proposal for Non-compensated Services, Values Based Pre-Release Program." Pls.' Ex. 197. The RFP was made available to the general public and expressed the state of Iowa's intent to establish a "values based" pre-release program at the Newton Facility in Iowa. As stated in the title of the RFP, the initial idea was that a values-based program would be established within the Newton Facility, but be "non-compensated." Prison Fellowship and InnerChange submitted a proposal to Iowa on September 16, 1998, and an amended proposal on December 23, 1998. The proposal sent by Prison Fellowship and InnerChange was the only response to the August 1998 RFP. Prison Fellowship and InnerChange made it clear to in those proposals that they had no intention of providing programming without cost. The record is unclear about why the Dept. of Corrections initially called for a "non-compensated" program, except possibly to avoid state funding of a religious program. Whatever the reason, the Dept. of Corrections quickly abandoned the 884 "non-compensated" term of the RFP *884 once it received the proposals from InnerChange and Prison Fellowship.
On March 24, 1999, Prison Fellowship0907 InnerChange and the Dept. of Corrections entered into a contract providing for the operation of InnerChange at the Newton Facility. From the first year of the contract, beginning in September 1999, until the end of the contract term in June 2002, the Dept. of Corrections contracted with both Prison Fellowship and InnerChange. The contract was renewable annually. Beginning in July 2002 until the present, the contract parties have been limited to just the Dept. of Corrections and InnerChange. In the first year of the program0907September 1, 1999 through August 31, 2000 0907the Dept. of Corrections paid Prison Fellowship0907InnerChange up to $229,950[20] "for non-sectarian costs and expenses of the InnerChange" program. The money came from the Telephone Fund.
C. Subsequent Funding of InnerChange
1. Contractual funding.
In the first year of InnerChange's operation at the Newton Facility, instead of Telephone Fund money going to pay for items such as library books or recreational equipment, for example, it was used to pay InnerChange expenses.[21] Telephone Fund commissions amounting to $294,017 at the Newton Facility were also used to pay for the cost of installing, leasing, and then purchasing Newton Facility Building M$56,944 for installation, $175,000 to lease the building for about twenty-one months (at a rate of $8,357 per month), and $61,576 to purchase Building M at the conclusion of the lease period in or about February 2002.
The next contract0907from September 1, 2000 through June 30, 2001 0907required the Dept. of Corrections to pay Prison Fellowship and InnerChange up to $191,625, to be paid from the Telephone Fund "for approved nonsectarian costs" of the InnerChange program. The total direct operating costs for the Iowa InnerChange program were $506,181. This operating amount does not include the cost incurred for the Iowa program in the

InnerChange national program budget center, nor the costs incurred for the Iowa program within the Prison Fellowship national office.[22]
The next RFP came three years after the first, in May 2002. The Dept. of Corrections publically issued an RFP for a "Values Based Pre-Release Program" to be continued at the Newton Facility. InnerChange made the only 885 response, which *885 it made in the same month0907May 2002. In September 2002, the Dept. of Corrections and InnerChange signed a contract providing for continued operation of the InnerChange program for the period from July 1, 2002, through June 30, 2003, renewable for two one-year terms. That year, the Dept. of Corrections paid InnerChange up to $191,625 for the "non sectarian portion of [InnerChange's] program costs," again to be taken from the Telephone Fund. That year, in addition to the Telephone Fund funds, the Iowa legislature also appropriated $172,591 from the Healthy Iowans Tobacco Trust ("Tobacco Trust")[23] to the Dept. of Corrections "for a valuesbased treatment program at the Newton correctional facility." This extra amount was paid to InnerChange on or about February 18, 2003, for the expansion of the InnerChange program to the Newton Release Center at the Newton Facility.[24] The contract provided that the funds were to be spent for "the nonreligious aspects" of the program. In that year, total local InnerChange operating expenses were $603,063, with $495,033 for the in-prison program and $108,030 for the InnerChange aftercare program. Again, these costs do not reflect InnerChange and Prison Fellowship national expenses related to the Iowa program.
The July 1, 2001, through June 30, 2002, contract also called for up to $191,625 to be spent from the Telephone Fund "for approved non-sectarian costs" of the InnerChange program. That year the total operating cost for the Iowa InnerChange program was $578,995. $577,350 of this amount was spent on the in-prison program and $1,645 was spent on the InnerChange aftercare program. Again, the local operating costs do not reflect the national office expenditures of InnerChange and Prison Fellowship related to the Iowa program.
The next year, funding for InnerChange came only from the Tobacco Trust. For the fiscal year from July 1, 2003 through June 30, 2004, the Iowa legislature appropriated $310,000 from the Tobacco Trust to the Newton Facility for "a values-based treatment program." Using that appropriated amount, the Dept. of Corrections contracted to pay InnerChange up to $310,000 "for the non-sectarian portion of [InnerChange's] costs" for the same year. Out of the $310,000, the Dept. of Corrections actually paid $276,909.15 to InnerChange for the program year. The 886 actual *886 local InnerChange operating expenses during this year were $670,382, with $512,089 for the inprison program and $158,293 for the InnerChange aftercare program. Again, national InnerChange and Prison Fellowship costs are not included in these amounts.
In the contract for the next year0907July 1, 2004 through June 30, 2005 0907the financial arrangement changed from a lump sum payment, conditioned on the actual "non-sectarian" expenses incurred, to a per diem arrangement. The amount appropriated by the Iowa legislature from the Tobacco Trust for a values-based program was the same $310,000. However, the contract now called for a payment from the Dept. of Corrections to InnerChange for "the non-sectarian portion of [InnerChange's] program at the per diem rate of $3.47 for each InnerChange inprison participant." InnerChange and Prison Fellowship do not bill aftercare services at a per diem rate. These are services provided after an inmate has completed the first two phases of the InnerChange program, which last eighteen months. The aftercare program lasts twelve months. Though a per-diem payment, no physical voucher system is in place at the Newton Facility. That year, the Dept. of Corrections paid $236,532.55 out of the $310,000 appropriation at the per diem rate. The actual local InnerChange operating costs were $687,655, with $507,747 going for the in-prison program and $179,908 for the InnerChange aftercare program.
In April 2005, the Dept. of Corrections again issued an RFP for a "Values Based Pre-Release Program." Also, in 2005, oversight for the RFP process shifted from General Services to the Dept. of Corrections itself. InnerChange submitted its proposal to the Dept. of Corrections on June 8, 2005. As stated above, Emerald, a non-religious rehabilitation services provider, submitted a proposal to the Dept. of Corrections on June 10, 2005. By July 14, 2005, the Dept. of Corrections sent both InnerChange and Emerald its notice of intent to award the contract to InnerChange. As of September 23, 2005, Emerald had not challenged the award.
Warden Mapes took part in evaluating the submissions by InnerChange and Emerald. Mapes was fully aware of the religious nature of the InnerChange program, but his motivation in selecting InnerChange was basic: cost. InnerChange was able to offer a full array of services at a price, $310,000, less than Emerald's bid at just over

$562,000, and much less than the approximately $1,000,000 that Warden Mapes and other correctional officials estimate a similar program would cost the state of Iowa to run. InnerChange met Mapes' preference for a licensed substance abuse program. Mapes' also preferred InnerChange's inmate assessment tool over that used by Emerald. Mapes' partner in the 2005 RFP submissions evaluation, Jeanette Bucklew, Deputy Director of the Dept. of Corrections, was not so sanguine about the ability of an inmate to differentiate between the religious teachings of InnerChange and the universal values contained therein. Bucklew entered on her evaluation for the InnerChange program that an inmate interested in joining the InnerChange program "must adhere to Christian ideology." Pls.' Ex. 209 at 2 (010912). Though knowing about the religious content of InnerChange, Bucklew also recommended InnerChange over Emerald because InnerChange cost less and offered the required, licensed substance abuse program, and had established a well-documented mentoring network that Bucklew did not want to see end. Quite specifically, Bucklew held it against Emerald that they were a first-time bidder from out-of-state: 887 "They were from Louisiana. They didn't demonstrate any resource connections *887 into this state. Whereas the IFI proposal clearly demonstrated that a large network was already established, already coming into the institution, and already supporting offenders as they transition back to the community." Trial Tr. at 1848. Unlike the early stages in the relationship with InnerChange, no "pre-negotiation" conversations occurred between state officials and Emerald, and no visits were made to sites where Emerald provided programming.
In total, the Dept. of Corrections has made direct payments of $1,529,182.70 to InnerChange. $843,150 came from the Telephone Fund and $686,032.70 from the Tobacco Fund. This fiscal year 0907July 1, 2005 through June 30, 20060907the Iowa legislature again appropriated $310,000 from the Tobacco Trust to be allocated to the Newton Facility for a values based treatment program. At the time of trial, a final copy of the latest Dept. of CorrectionsInnerChange contract, with all requisite signatures, was not available, but the same per diem arrangement was included. Norman Cox, the National Director of InnerChange, estimated that the state of Iowa pays thirty-five to forty percent of the cost of operating the Iowa InnerChange program.
As mentioned above, InnerChange is a subsidiary of Prison Fellowship. The National Director of InnerChange is an employee and a Vice-President of Prison Fellowship. Prison Fellowship appoints the InnerChange Board of Directors. Prison Fellowship has final authority over the hiring and firing of all InnerChange staff. InnerChange employees are also considered employees of Prison Fellowship and receive their checks from Prison Fellowship. As seen below, InnerChange operating expenses in Iowa are paid with Prison Fellowship funds, a substantial part of which are reimbursed as non-sectarian expenses with state funds.
2. Sectarian versus non-sectarian funding.
All of the operating expenses incurred by the InnerChange program in Iowa are initially paid out of a Prison Fellowship account or out of a local "Gelco" expense account in Iowa, composed of money received from Prison Fellowship. InnerChange initially places payments from state governments into a separate account. InnerChange's bills are not paid out of that account. Instead, the funds are periodically transferred from that account to Prison Fellowship, to reimburse Prison Fellowship for the payment of operating expenses of the InnerChange program. When funds are transferred to Prison Fellowship, they go into Prison Fellowship's general bank accounts0907which also contain funds from private sources0907not into a separate Prison Fellowship bank account.
According to the Director for Offender Services in the Dept. of Corrections, Lowell Brandt ("Brandt"), who was responsible for the general oversight of the state contract with InnerChange from 1999 to 2004, there was no regular, on-site monitoring of the InnerChange program to make sure state funds were being used only for nonsectarian purposes. Brandt relied on conversations with InnerChange employees, the contract language itself, and the nature of the billings received by the state to monitor whether funds were improperly used for sectarian costs of the InnerChange program. Staff salaries based on time devoted to sectarian or nonsectarian activities was based on InnerChange's representations to the state about how each InnerChange employee's time was utilized. No hour by hour calculation ever occurred, rather "it was more of a general understanding of how the time would be spent." Trial Tr. at 1307.
888 Overall, Brandt relied on Newton Facility employees and staff to raise any concerns *888 they might have about funding. No management-level Dept. of Corrections employee ever received notice from Newton Facility staff

with concerns about InnerChange funding. The Newton Facility Warden has no involvement in overseeing sectarian versus non-sectarian expenses.
By April of 2001, in anticipation of renewing the InnerChange contract, Director Kautzky was not entirely assured that a clear enough distinction between sectarian and non-sectarian funding of the InnerChange program was in place. In response to a memorandum written by Brandt asking that Dept. of Corrections executives review the annual agreement, Kautzky wrote: "Please ensure that we resolve definition of non sectarian v. sectarian costs. Per AG we need a clear definition, base amount, and quarterly payments equal to four installments of the base amounts. Eliminate any need for DOC quality control over what is or isn't. . . ." Pls.' Ex. 171. At trial, Brandt agreed that a precise definition of what could be considered sectarian or non-sectarian was not finally resolved. InnerChange defined sectarian as "[p]ertaining to the religious aspect of the IFI program" and nonsectarian as "not specifically pertaining to religion or a religious organization." Pls.' Ex. 192 at 1. How these definitions are related to costs is still ambiguous. Warden Mapes testified he did not keep a copy of the contract with InnerChange close at hand and conceded that, though he defined the difference between sectarian and nonsectarian as that between religious and non-religious, "[i]t's a very difficult line." Trial Tr. at 1518. In the end, InnerChange and the Dept. of Corrections did not develop a systematic way of monitoring or assessing what the Dept. of Corrections funded in the InnerChange program. For Warden Mapes, the real bottom line was: "[Aim I getting $310,000 worth of nonreligious programs out of the IFI contract? And my answer to that would be yes, it is my belief I do." Trial Tr. at 1520.
InnerChange bills the state of Iowa only for those portions of the InnerChange program costs and expenses that InnerChange codes or designates as "non-sectarian." InnerChange, on its bills to Iowa, has assigned a "sectarian" percentage and a "non-sectarian" percentage to the time of each of its staff members and, subject to the appropriate limits allowed for each fiscal year, bills the Dept. of Corrections for what InnerChange has designated as the "non-sectarian" percentage. InnerChange staff, however, do not divide class or counseling time into non-sectarian and sectarian portions, and do not record time they believe is sectarian separately from time they believe is non-sectarian. They also do not record time they spend on each individual task, nor create any other records accounting for time in sectarian and non-sectarian categories.
The expense records kept by the local InnerChange Office Administrator as sectarian or nonsectarian are incorporated by Prison Fellowship and InnerChange into quarterly general ledger reports listing individual expenses into categories. Each expense category0907i.e., materials and supplies, printing, telephone is 0907 further delineated as a sectarian or non-sectarian expense. The general ledgers are used to bill the state of Iowa. In general, the total shown on a general ledger report for "nonsectarian" expenses in each expense category is billed to the state of Iowa.
InnerChange has one copy machine in the Newton Facility Building M. Secular materials and materials with biblical content0907including Bible study curriculum0907 are copied on this machine. Some of the non-sectarian billing to the state of Iowa includes copying costs. Every copy up and until 40,000 per month is charged to the state of Iowa as non-sectarian.
889 *889 Each additional copy above 40,000 is coded as sectarian.
InnerChange codes the entirety of its regular monthly land and cell phone bills to the state of Iowa as nonsectarian. InnerChange also codes computer repair fees as non-sectarian. InnerChange computers are used by InnerChange staff in the InnerChange offices in Newton Facility Building M. InnerChange bills its payments for computer hardware and software to the state of Iowa as nonsectarian costs. InnerChange's single internet account is billed as non-sectarian to the state of Iowa. Likewise, InnerChange's single postage meter and its thermal postage tape are both coded as nonsectarian costs to the state. InnerChange letterhead, envelopes, and standard office supplies (paper, pens, pencils, ink cartridges, paper clips, staplers, staples, binders, printer toner, copier toner, and standard envelopes) are coded as non-sectarian and billed to the state. InnerChange's purchase of blank videotapes used in its audio equipment is coded non-sectarian.
InnerChange's 2002 brochure, "A Prison Like No Other," was printed and copied completely through state funding. Pls.' Ex. 42. The brochure is an InnerChange volunteer recruiting tool, provided to church groups and other interested individuals. Among other things, the brochure announces:

You can help! The power of the Gospel0907shared through the living witness of committed Christians0907will transform criminals and change society for the better. Men and women of God who share their faith, their time, and their talents with prisoners today will help to restore peace and security in our communities tomorrow.
Id. Charles Colson adds a personal statement: `The InnerChange Freedom Initiative is our chance to demonstrate, in a way secular people will never be able to doubt, that Christ changes lives, and that changing prisoners from the inside out is the only crime-prevention program that really works." Id.
The parties stipulated that the state of Iowa is billed for what InnerChange describes as nonsectarian aspects of InnerChange employee salaries. For example, the Assistant Program Director's salary is billed at 31% nonsectarian and 69% sectarian. Much of his time is spent on oversight of the InnerChange Re-entry program and counseling fifty to seventy inmates. Seventy-seven percent of the InnerChange Office Administrator's salary is billed to the state of Iowa and is designated as nonsectarian. The Office Administrator pays the office bills, records expenses, determines coding of expenses as either "sectarian" or "non-sectarian," deals with volunteers, keeps records, coordinates events, processes staff time sheets and leave records, and assists InnerChange staff with clerical and administrative needs. The work the Administrator does relating to volunteers 0907processing and keeping files of applications, maintaining a computer database of volunteer information 0907relates to all InnerChange full-time volunteers, including volunteers who present, teach, or lead Bible studies and Bible-based classes.
Eighty-two percent of InnerChange Local Director Dan Kingery's salary is designated and billed to the state of Iowa as "non-sectarian." His main duties include oversight of the InnerChange program in Iowa, hiring employees, recruiting inmates for the InnerChange program across the Dept. of Corrections institutions, local budget oversight, and communicating with the Newton Facility Warden, Terry Mapes, about InnerChange issues. Kingery spends about 25% of his time recruiting inmates for the InnerChange program. He personally leads the 890 introductory program *890 at the Newton Facility, as well as at Dept. of Corrections facilities located in Fort Dodge, Iowa, and Clarinda, Iowa. During the introductory program, Kingery uses biblical references and discusses what he considers to be biblical principles. Kingery spends five percent of his time on budget oversight, overseeing coding for sectarian and non-sectarian expenses. Kingery spends another ten percent of his time communicating with Warden Mapes.
Ninety-three percent of the Aftercare Manager's salary is billed to the state of Iowa as nonsectarian. Sixteen percent of each InnerChange Biblical Counselor's salary is billed to the state of Iowa as "nonsectarian." InnerChange Biblical Counselors are referred to as "Case Workers" on the bills. The primary duty of Biblical Counselors is to teach InnerChange classes and provide one-on-one counseling to inmates. The allocation of sectarian and non-sectarian percentages to staff salaries has remained constant since the beginning of the Iowa program. No Dept. of Corrections, Prison Fellowship, or InnerChange employee has ever followed or otherwise scrutinized the current InnerChange staff for even one day to record the amount of time spent on individualized tasks.
As mentioned, trial testimony revealed that a well-defined system for the coding of sectarian versus non-sectarian expenses, other than salaries, at the Newton InnerChange program was not in place. For instance, "Jesus is Lord" and "Psalm 23" key rings0907used as InnerChange graduation gifts 0907were coded as non-sectarian items. Religious bookmarks, used as gifts to InnerChange volunteers and presented at the volunteer banquet, were coded as non-sectarian. In 2002, three years after the start of InnerChange in Iowa, the Office Administrator coded as non-sectarian InnerChange's "Church Copyright License," a license required to copy religious music and songs for use in worship and other settings. Though billed as sectarian now, InnerChange billed to the state the cost of its subscription to The Upper Room, a monthly Christian devotional booklet, as late as February 2004. InnerChange holds a regular appreciation dinner for its volunteers, including those who lead Bible studies. These meals are also coded as non-sectarian and billed to the state. No Dept. of Corrections employee has ever monitored InnerChange's use of office equipment or office supplies to see to what extent their use was being allocated as sectarian or non-sectarian.

InnerChange inmates do not have to pay for materials used in InnerChange worship experiences such as juice, bread, or song books as do Native American inmates for sweat lodge items, or Jewish inmates for food and items necessary to remain kosher. InnerChange argues that supplies for Friday night revivals and Sunday church are not worship supplies like those needed for Native American or Jewish inmates, but "treatment supplies," required for the InnerChange program.
D. The InnerChange Program at the Newton Facility
1. Security and physical setting.
As mentioned, InnerChange operates at the Newton Facility, which is located near Newton, Iowa, approximately thirty-five miles east of Des Moines. The Newton Facility houses nearly 875 inmates in a medium-security setting. Also located at the Newton Facility is the Newton Release Center, a minimum security facility located one mile away from the main prison facility. Newton Facility inmates are classified according to risk assessment, Level One through Level Five. Level Five, the highest assessment, represents those inmates with the lowest 891 associated security risks. Those inmates with higher classifications enjoy fewer restrictions, generally, than *891 those inmates with lower classifications.[25] The Newton Facility is considered to have a relatively well-behaved inmate population in comparison with other Dept. of Corrections facilities and, as a result, is considered to be a safe prison environment. The Newton Facility, opened in 1997, and the Fort Dodge Correctional Facility ("Ft. Dodge"), opened in 1998, are the two newest prisons in the Dept. of Corrections 0907the next newest facility opened in 1982.
The Newton Facility's five living units are lettered A, B, C, D, and E. Unit A is a "lockdown" unit used to house inmates in disciplinary detention, administrative segregation, or protective custody. Unit A is the most restrictive of the five units. Unit B is a close management unit that houses inmates who are classified as Level Two, Level Three Restricted, Level Four, Protective Custody, Federal Detainees, Safe-Keepers (sex offenders awaiting civil commitment trials), and Polk County, Iowa, parole or probation violators. Unit B is also used as an intermediate, general processing unit for inmates being transferred or placed in the general population. Unit B inmates enjoy fewer restrictions than those housed in Unit A, but are more restricted than inmates housed in Units C, D, or E. Units C and D are used to house general population ("GP") inmates. GP inmates are generally classified at Level Four or Five. Units C, D, and E each have the same capacity 0907each of the units has the same number of two-man cells and the same number of three-man cells. There are no one-man cells. Each unit can house approximately 242 inmates. The InnerChange program is housed in Unit E.
Building M on the Newton Facility campus is a 4,608 square foot modular building used only by InnerChange. It contains InnerChange offices, classrooms, a computer room, a library, and a multi-purpose room. The multi892 purpose room is used by InnerChange inmates to practice music, *892 including Christian music for InnerChange events such as Friday night revivals. The Newton Facility Building M was built pursuant to a Dept. of Corrections contract with Prison Fellowship and InnerChange for InnerChange's programming needs. Building M will remain the property of the Dept. of Corrections if InnerChange ceases to provide treatment programming. The Dept. of Corrections provides the electricity and water for Building M, including utilities used for heating and cooling. The electricity and water costs are paid through the state of Iowa general fund as a regular part of prison costs. The Dept. of Corrections provides maintenance for Building M, performed by Dept. of Corrections employees. The Dept. of Corrections provides the furniture for InnerChange offices, as well as tables and chairs for InnerChange events. Some InnerChange inmates are given regular, paid prison jobs to provide services to InnerChange, such as assisting InnerChange staff with clerical support.
Building H on the Newton Facility campus is a large, central structure, which serves the entire Newton Facility prison population and staff. The Newton Facility Building H contains the prison chapel, health services, gymnasium, classrooms, laundry services, dietary, maintenance, library, and other Newton Facility offices. InnerChange holds its community meetings, revivals, church services, and graduations in the Newton Facility gymnasium located in Building H. Often for its revivals and graduations, and sometimes for community meetings, InnerChange brings electronic music equipment into the gymnasium for musical performances. There are

security cameras at the Newton Facility in the living units, inmate day areas, the yard, and parts of Building H. There are no security cameras in Building M or in the classrooms used by GP inmates in Building H.
In 2003, the InnerChange program extended to the Newton Release Center, located just a mile away from the main Newton Facility campus. The Newton Release Center has five living units identified as Dorms 1, 2, 3, 4, and 5. Inmates at the Newton Release Center enrolled in InnerChange are principally housed in Dorm 3. Dorms 3, 4, and 5 are in the new addition to the Newton Release Center, while Dorms 1 and 2 are located in the older section. Dorms 1 and 2 do not have air conditioning, while Dorms 3, 4, and 5 have air conditioning. The shower facilities in Dorms 3, 4, and 5 have dividers between the showers and opaque shower curtains. The showers in Dorms 1 and 2 are simply set up side by side, without dividers, in an open shower area. The beds in Dorms 1 and 2 are arranged army-barracks style, with no dividers between them other than an approximately fourfoot high dividing wall that extends down the middle of each dorm. Dorms 3, 4, and 5 have true (full height), concrete dividing walls that extend from the main walls and divide some of the bunks in those dorms into groupings of four.
Before the advent of InnerChange, Unit E was formally and informally referenced by inmates and staff alike as the prison's "honor unit," and was used to house those inmates awarded with the highest security or privilege levels associated with low risk behavior. Unit E inmates were those inmates who stayed out of trouble, garnered no reports, and worked in full-time jobs. One Newton Facility inmate characterized Unit E as a place where one could be surrounded by like-minded inmates and that, overall, it was less of a madhouse than other living units. In fact, all Newton Facility inmates classified at Level 5 (the highest classification level at the Newton Facility) were placed in Unit E. Unit E, along with Newton Facility Building M, also contains some InnerChange staff 893 offices. *893 When InnerChange moved into Unit E, inmates already residing there were moved to other GP living units if they did not join the InnerChange program.
The cells in Units C, D, and E are all two-man or three-man cells. The toilets and sinks in all Newton Facility cells other than Unit E cells are located in the cells, themselves, and no door, partition, curtain, or other divider separates a toilet in a non-Unit E cell from the rest of the cell. The cells in Unit E are called "dry cells," meaning that toilet and sink facilities are not in the cells, but are in separate community bathrooms. The toilet stalls in the Unit E community bathrooms are separated by dividers and have doors with sliding locks. The sinks and toilets in the community bathrooms in Unit E are made of porcelain, whereas the sinks and toilets in Units A, B, C, and D (the non-Unit E cells) are constructed out of stainless steel, with the toilet connected directly to the sink pedestal to form one structure.
The dimensions of the cells in Units C, D, and E are identical. The lack of toilet and sink facilities, however, results in a larger aggregate space in Unit E cells. Inmates living in Newton Facility units other than Unit E are not given keys to their cell doors, and the locks on their cell doors are controlled by correctional officers through a remote locking system. The wooden cell doors in Unit E do not have food slots as do the steel cell doors used in Units A, B, C, and D. The wooden Unit E cell doors have knobs that can be turned, while the cell doors in Units B, C, and D have fixed handles that cannot be turned.
Normally, inmates who are transferred to the Newton Facility for a reason other than to participate in InnerChange are initially placed in Unit B of the Newton Facility. Inmates transferred to the Newton Facility in order to participate in InnerChange, however, are placed directly in Unit E. Some inmates who have graduated from the in-prison component of InnerChange are allowed to continue living in Unit E for some time after they graduate.
The Dept. of Corrections provides necessary inmate transportation between correctional facilities for the InnerChange program, as it does for any Dept. of Corrections inmate participating in non-InnerChange treatment programs. The Dept. of Corrections also provides the necessary correctional staff, food, clothing, and medical care for InnerChange inmates. The Dept. of Corrections further supplies a sufficient number of academic teachers and air-conditioned classrooms to ensure that all InnerChange inmates have the opportunity to obtain their high school equivalency diploma, commonly known as the General Equivalency Diploma ("GED"), prior to their release from the in-prison phases of the program.
2. Inmate Orientation and Introduction.

Inmates are not required to participate in the InnerChange program. However, inmates who do take part in InnerChange must be willing to productively participate in a program that is Christian-based. The admission requirements imposed by InnerChange are that an inmate wants to be in the program and expresses a desire to change. InnerChange's stated policy is that it does not require inmates "to accept Jesus Christ as their Savior." Inmates are formally made aware of InnerChange expectations during the Introduction program. Each inmate who testified at trial explicitly stated that no one from the Dept. of Corrections or InnerChange threatened to punish them, take away their privileges, or otherwise pressure them if they did not join InnerChange. Likewise, none of these inmates stated they were promised a reduced sentence or an earlier parole for their participation. 894 [26] When a Dept. of *894 Corrections inmate becomes eligible for the InnerChange program, that inmate is not provided information about other available Dept. of Corrections classes and treatment programs taught from a nonsectarian perspective.
The InnerChange Introduction program is designed to give a detailed overview of the InnerChange program. It is held periodically at the various institutions throughout the Dept. of Corrections. The Dept. of Corrections posts notices in inmate living units, and at its inmate intake facility at the Iowa Medical and Classification Center ("IMCC") in Oakdale, Iowa, informing inmates that InnerChange will conduct recruiting presentations or interviews. Inmates are allowed to attend the Introduction program when it is presented at the institution where they are incarcerated.[27] During the Introduction program, inmates considering enrolling in InnerChange are told that InnerChange is a faith-based program taught from a Christian-based perspective. The InnerChange Field Guide is made available to inmates who are considering enrolling in InnerChange. As of October 2003, the waiting list for InnerChange was 146 inmates, that is, about 146 inmates had completed the InnerChange Introduction and were eligible to enroll in the main portion of the program, starting with Phase I, but were waiting for spaces to become available. As of July 31, 2005, 977 Iowa inmates had enrolled in the InnerChange program. Pls.' Ex. 383 at 00284. Of those, 231 were removed or withdrew from the in-prison phases of the program.
Following the Introduction program, prospective InnerChange inmates participate in the four-week long 895 Orientation program, which is held in Newton Facility Unit E. When inmates residing at prisons *895 other than
the Newton Facility are approved for entry into InnerChange, they are transferred to the Newton Facility for the purposes of participating in the InnerChange program. As of November 2003, of 238 inmates at the Newton Facility participating in InnerChange, 76 were transferred from Ft. Dodge, 56 were transferred from Oakdale, 51 were transferred from Clarinda, 36 were already incarcerated at the Newton Facility, fourteen were transferred from Anamosa, four were transferred from Ft Madison, and one inmate was transferred from Rockwell City. Again, inmates must request transfer and can only be transferred at the discretion of Dept. of Corrections officials0907inmates are transferred as a matter of privilege, not right.
The Orientation program is designed to give the candidates more knowledge about the InnerChange program so they can decide whether to enter the main InnerChange program, and to allow InnerChange staff to assess the candidates and make sure that the candidates are able to meet the minimum behavioral requirements for the program. The admission requirements imposed by the Dept. of Corrections are that the offender must express a commitment to complete the InnerChange program, meet the criteria for medium or minimum custody, and must be suitable for housing in multi-person dry cells. However, testimony revealed that inmates in maximum security facilities with attendant high custody scores, who otherwise would not be allowed into the Newton Facility, were able to participate in the InnerChange program based in Unit E. Evidence also shows that inmates with custody scores that would otherwise keep them from being allowed into other treatment programs, were allowed to participate in InnerChange.[28] Inmates who are recommended to take the Sexual Offender Treatment Program ("SOTP"), however, may be required to complete that program before participating in InnerChange, even though they meet all other entrance requirements. Despite these requirements, inmates with a considerable length of time left on their sentences, including those serving life sentences, may be eligible for InnerChange. In fact, inmates serving life sentences have been enrolled in InnerChange.
The Orientation includes, among other things, evening Bible study classes led by InnerChange peer facilitators. Upon completion of the Orientation, and in order to proceed into the InnerChange main program, all InnerChange inmates are required to sign a document entitled "Accountability Covenant." Pls.' Ex. 85. The signatory of the Accountability Covenant agrees to, among other things:

[U]nderstand that the principles in Matthew 18:12-35 will be applied in my life within the IFI community.

Those principles are

1. Error leads us to danger (vs.12)

2. The heart of correction is to restore (vs.13, 14)

3. It is the responsibility for those involved to reconcile on an interpersonal level (vs.15)

4. Peer mediation is to be utilized if necessary (vs.16)

5. Removal from the community is a last resort (vs.17)

896

*896 6. Conflict resolution builds a stronger community (vs.18-20)

7. Interpersonal forgiveness of others is a condition of personal forgiveness from God. (vs.21-35)

Id. This document is also an example of the all-pervasive use of the biblical text, primarily that portion of the text that Christians refer to as the New Testament, when InnerChange leaders wish to underscore or explain almost any facet of the InnerChange program's policies, principles, or instructions.

InnerChange makes clear to any Dept. of Corrections inmate contemplating becoming an InnerChange member that the InnerChange program is not for everyone, even those who otherwise meet Dept. of Corrections and InnerChange criteria. The "Closing Comments" section of the InnerChange Field Guide orientation material makes this plain:

When prisoners are screened for IFI, there is no discrimination based on ethnicity, race or religion. In other words, IFI does not choose or refuse prisoners based on their race or religion. Suppose you are not a Christian, or you are a person of another faith, such as a Jew or a Muslim.[29] You are still considered for IFI on an equal basis with those who are Christians. If you are of a religion other than Christianity, you may have special requests that relate to that religion. Those are handled according to [I]DOC policies and procedures. We will try to grant those requests. But they will not be granted if they keep you from fully taking part in the IFI program or if they prevent you from meeting every program requirement. Suppose you see that you cannot fully practice your religion in IFI, then you may choose not to join the program. These decisions should be made before you join IFI.

Pls.' Ex. 73 at 9.

In the Introductory and Orientation sessions to InnerChange, inmates are introduced to the six main values contained throughout the InnerChange curriculum:

[] Integrity0907being honest with yourself and others, doing the right thing whether or not people are watching

[] Restoration0907repairing broken relationships

[] Responsibility0907doing what is expected, being accountable, accepting the consequences of failure without blaming others

[] Fellowship0907working together with others to build community, bearing each other's burdens

[] Affirmation0907giving honest encouragement to others, bringing out the best in others

[] Productivity0907making important contributions, stewarding time and other resources well

Pls.' Ex. 73 at 2. Throughout trial, every non-Evangelical Christian inmate witness conceded that these six values contained in the InnerChange curriculum were universal in nature and included in their respective faiths. So, the Defendants argue, really anyone0907irrespective of faith0907could join InnerChange, participate in its Christian worship services, devotionals, community meetings, classes, and revivals for eighteen months and glean from those 897 experiences the universal values all religions *897 share. However, virtually none of the inmate witness who experienced InnerChange, when asked simply the open-ended question of what they were taught in InnerChange, mentioned these universal or civic principles. Rather, each spoke in overt religious and biblical language about the nature of the curriculum. The inmates' responses were not surprising given InnerChange's own understanding that these principles, in practice, are couched in Evangelical Christian theological language. Again, the InnerChange White Paper is instructive about the approach InnerChange takes at the Newton Facility:

Biblical principles are integrated into the entire course curriculum of IFI, rather than compartmentalized in specific classes. In other words, the application of Biblical principles is not an agenda item it 0907 is the agenda. IFI is a Christian community, where all members, staff, and volunteers seek to be Christ-like in their honesty, humility, and unconditional love for each other. Prisoners are taught Biblical principles in the context of teachable moments. Throughout each day they are provided time for reflection and meditation in order to integrate those principles in their lives. The IFI community serves as the crucible for learning and testing Biblical principles. To facilitate this, Biblical principles and core values are prominently displayed throughout the facility and promoted through memorization. Though there are many important Biblical values to learn, IFI highlights several that are normally deficient in an offender's life. Those values are italicized and described below.

Integrity, Truth. By the use of the Bible verses, the inmate is encouraged to reflect and discuss their meaning. Members are taught to reflect on the consistency of their actions, words, and beliefs and match how they relate to the Bible. The integrity of members is central to the success of this prison community. For instance[:] "Who may dwell in your holy hill? He who walks uprightly, and works righteousness, who speaks the truth in his tent." (Ps. 15:102). "Do not lie to each other, since you have taken off your old self with its practices and have put on the new self, which is being renewed in knowledge in the image of its Creator" (Col. 3:9-10) Fellowship is another Biblical value the program focuses on. It is rooted in Jesus' example of unconditional love for His friends and enemies as evidenced in His actions. This enables them to create similar relationships within the church when they leave prison. The Bible is permeated with references to the importance of unconditional love and community. For instance: "Let us consider one another in order to stir up love and good works" (Heb. 10:24). "Exhort one another daily while it is called `today' lest any of you be hardened through the deceitfulness of sin" (Heb. 3:13). "[T]herefore if there is any consolation in Christ, in any comfort of love, if any fellowship of the Spirit, if any affection and mercy, fulfill my joy by being like-minded, having the same love, being of one accord, of one mind" (Philippians 2:1-2). "But if we walk in the light as He is in the light, we have fellowship with one another, and the blood of Jesus Christ His Son cleanses us from all sin" (1 John 1:7).

Affirmation is a value in both InnerChange and therapeutic models. However, affirmation within the

IFI model is defined as God's affirmation of us rather than man's affirmation. Prisoners learn that it

is important to affirm and encourage each other consistent with God's principles. Some inmates

have never experienced affirmation given by another person and do not know what it means to be

898

valued. Others have been affirmed for the wrong attitudes or behaviors. *898 In other words, when

affirming another it must be consistent with Biblical standards. For instance: "Not he who

commends himself is approved, but whom the Lord commends" (2 Cor. 10:18). "Let each examine

his own work, and then he will have rejoicing in himself alone, and not in another" (Gal. 6:4). "It is

a very small thing that I be judged by you . . . He who judges me is the Lord" (1 Cor. 4:3-4). "My

soul waits silently for God above. My expectation is from Him" (Ps. 62:5).

Responsibility and Restoration are critical values of the IFI program. In IFI there is heavy emphasis on taking responsibility for our choices, both past and present. In IFI, members are

taught to be accountable for their actions and take responsibility for initiating acts of healing and reconciliation with those they have alienated and hurt. In this way they are restored to their Creator, families, and communities. These verses illustrate the point: 'We must all appear before the judgment seat of Christ that each one may receive the things done in the body, according to what he has done whether good or bad" (2 Cor. 5:10). "Let the wicked forsake his way; and the unrighteous man his thoughts; and let him return to the Lord; and He will have compassion on him and to our God, but not according to knowledge. For they being ignorant of God's righteousness, and seeking to establish their own righteousness, have not submitted to the righteousness of God" (Romans 10:2-3). "[A]nd be found in Him, not having my own righteousness, which is from the law, but that which is through faith in Christ, the righteousness which is from God by faith; that I may know Him and the power of His resurrection, and the fellowship of His sufferings, being conformed to His death," (Philippians 3:9-10).
Productivity is an important value anchored in Biblical principles, and one that most inmates lack. In IFI, productivity is defined as the effective use of one's time in line with God's principles. Ephesians 5:16 states, "redeeming the time, because the days are evil." In this context, prisoners are taught to be good stewards of their time, investing in priorities that are in line with God's will. IFI trains prisoners to engage in productive work, so that they may become productive contributing members of their community after their release. The Bible instructs us: "[B]ecause of laziness the building decays and through idleness of hands the house leaks" (Ecc. 10:18), and "whatever you do in word or deed, do all in the name of the Lord Jesus" (Col. 3:17). "And whatever you do, do it heartily, as to the Lord and not to men" (Col. 3:23). Also, see these other references: Eph. 6:5-7; Mark 10:45; 1 Thess. 3:10.
Pls.' Ex. 35 at 4-5.
While these universal, civic values can logically be separated from the biblical context in which they are presented, the intensive, indoctrinating Christian language and practice that makes up the InnerChange program effectively precludes non-Evangelical Christian inmates from participating.[30] Plaintiff-inmate Jerry Dean 899 Ashburn ("Ashburn"), a self-described Reorganized Latter Day Saint, testified *899 that, based on the reading of some of InnerChange's materials, he would not be comfortable joining the program. Plaintiff-inmate Bilal Shukr (a.k.a. Bobby Shelton) ("Shukr"), a Sunni Muslim, also read portions of the InnerChange curriculum and visited with the ISP chaplain to investigate whether InnerChange would be appropriate for him. The chaplain, a Dept. of Corrections employee, informed Shukr that the curriculum was strictly Christianbased and there were no opportunities for interfaith study in the program because there was no interfaith curriculum. Shukr testified that, as a Muslim, the teaching of the Bible was very important. What he could not countenance, as a Muslim, was that he would be in groups in which prayers would be offered to Jesus Christ as a deity, as God's son 0907something the strictly monotheistic religion of Islam would abhor. Shukr put it this way:
[T]here was no possibility for me, as a Sunni Muslim, to partake in that program without desecrating my faith, without me blaspheming God. We believe there's only one God, and he doesn't have any sons or daughters or partners. He's the supreme ruler over all mankind, and we are all brothers and sisters under one God. For me to embrace any type of curriculum contrary to that, I would be desecrating my faith.
Trial Tr. at 163. There are no similar community-based programs like Inner-Change based on an Islamic model. For instance, while the Dept. of Corrections allows individual Muslim inmates to observe aspects of the holy season of Ramadan, there are no communal observations of Ramadan. This fact, along with his other post-9/11 experiences of racial prejudice, Shukr testified, "just added fuel to the fire, making] it appear as though the state of Iowa has a partiality toward Christian-based programs, and not faiths of different sorts." Trial Tr. at 166. Inmate Troy Dewayne Redd ("Redd"), also a Sunni Muslim, keeps his faith through praying five times a day, making regular fasts, and attending Friday evening prayer service. For Redd, the act of joining InnerChange would be blasphemy0907to do so a person "would have committed a sin against Allah, God." Trial Tr. at 292. InnerChange's own materials cast aspersions on non-Evangelical Christian faith groups.[31] The Court found very credible by Jesus; the lesson contains these typical InnerChange questions: "1) Jesus came to look for and save the lost.

(write true or false on the line); 2) If we follow Jesus, we will try to make things right with those we have wronged. (write true or false on the line)." Id. at 17-18. Responsibility is taught using the biblical story of the Good Samaritan and, among other questions, the material asks: "If we obey Jesus and love God, we will love others. (write true or false on the line)." Id. at 21. The section on the concept of community building is taught through the story of Jesus inviting others to be his disciples, and includes this question: "Jesus prayed all night before He chose His 12 apostles. What can this teach us? (write true or false on the lines.) a. We should pray a lot before we make a big decision. b. We should pray about what part we should take in the InnerChange Freedom Initiative. c. We should pray only if we feel like it and have the time." Id. at 24-25. Affirmation is introduced through the story of the woman at the well contained in John's Gospel. Id. at 27. Productivity is explored through the story of Nehemiah contained in the biblical book by the same name. Id. at 31. The Introduction Workbook concludes with a bible study in six lessons: Do You Know Jesus Personally?; Salvation; Answered Prayer; 900 Victory; Forgiveness; and Guidance. *900 Kevin Watson's testimony when he stated that, as a member of the Nation of Islam, he could not join InnerChange without compromising his faith. Indeed, Watson's Dept. of Corrections counselor informed Watson that InnerChange would probably not be for him.[32]
Likewise, Dept. of Corrections inmate Glendale More, Jr. ("More"), a member of the Lubavitch Jewish faith, practices his faith by not shaving his beard, wearing a yarmulke (although not yet allowed at the Newton Facility), performing mitzvahs, and staying kosher during high holy days (he pays for all his own kosher meals), praying, and staying in contact with his rabbis. To join a group praying to and worshiping Jesus Christ, as required by InnerChange, would violate his religious faith. The Court found credible the testimony of witnesses who stated that nonreligious persons were often characterized by InnerChange staff as "unsaved," "lost," "pagan," those "who served the flesh," "of Satan," "sinful," and "of darkness." Native American inmates who enroll in InnerChange face obstacles as well. Benjamin Burens, a Native American Dept. of Corrections inmate, characterized his religious life as living the sweat lodge ways everyday. He does not believe Jesus Christ is God and does not use the Bible. Like many Native American prisoners, Burens participates in the sweat lodge ceremony on a regular basis. The costs of the sweat lodge materials0907rocks, wood, etc. 0907are paid by those inmates who participate. While InnerChange has provided permission to the few Native American participants in the program to practice the sweat lodge ceremony, InnerChange makes clear that a non-Christian religious observance is not considered part of the InnerChange treatment program and may only be done at InnerChange's discretion. The Court found credible Burens' testimony that, during one-on-one sessions with an Inner-Change teacher, Burens was asked whether he was saved, whether he was a Christian, and whether he believed in Jesus. Trial Tr. at 758-59. Burens was also asked "what was I doing going out there to the sweat lodge ceremony." Id. at 759. Burens was told the sweat lodge ceremony was basically a form of witchcraft, against the Bible, sorcery, and worship of false idols. The InnerChange Field Guide in use during the time Burens was in the program stated: "As you are transformed into the image of Christ, you have more and more integrity." Pls.' Ex. 74. Not surprisingly, Burens did not last in the InnerChange program. The listed reasons for Burens' expulsion from InnerChange were that, because Burens received a visitor on a Friday, he missed a Friday revival by twenty minutes; that Burens was not growing spiritually; and that he did not "step up" in the community meetings, i.e., he did not fully participate in the services, instead remaining seated while others shows their involvement by singing songs, standing, and raising hands. Trial Tr. at 762-63.
901 *901 3. Daily life in InnerChange.
The InnerChange program is divided into four phases. The first phase ("Phase I"), is twelve months long. The second ("Phase II") is six months in length, and immediately follows Phase I. An Inner-Change inmate's schedule is determined by the InnerChange program and curriculum. During the first eighteen months of the InnerChange program (Phases I and II), participant inmates receive biblically-based instruction for approximately four hours per day. In addition, community meetings and devotionals take up approximately one hour and twenty minutes per day. Revivals are held on Friday nights in the gymnasium located, as mentioned above, in Newton Facility building H. Worship services are held on Sunday mornings. The worship services are usually led by InnerChange staff and are also held in the Newton Facility gymnasium. Inner-Change inmates have access to electric musical instruments that, according to Inner-Change policy, are used for programming purposes only.
When they join, each InnerChange inmate is given a t-shirt with an Inner-Change logo. Non-InnerChange inmates at the Newton Facility are not allowed to wear clothing that has any kind of emblem or logo other than

the brand name emblem. The general rule at the Newton Facility is that GP inmates are not allowed to have more than ten books in their cells at any one time, and religious books count toward this limit. Books provided by treatment programs to inmates, including InnerChange, are considered to be treatment program materials and do not count against the ten-book limit.
InnerChange inmates enjoy a less restrictive security environment, largely the result of living in a former honor unit. Some benefits are more individualized and can occur in the context of the intimate relationships InnerChange members develop with InnerChange staff. For example, Michael Bauer testified he was able to listen to a streaming audio broadcast of a baseball game involving his favorite team. Other InnerChange inmates have been able to make telephone calls otherwise not allowed by the strict Dept. of Corrections policies governing inmate phone use. The Defendants presented evidence that whenever Newton Facility personnel were made aware of loose application of Newton Facility rules by InnerChange staff, corrections were immediately made. Nevertheless, the lack of security cameras and Newton Facility corrections officers in Building M, and the intimate community created by the InnerChange program, create an atmosphere in which InnerChange inmates receive less restrictive supervision than other GP inmates at the Newton Facility.
A typical InnerChange inmate in Phase I of the program begins his day with an optional devotional time at 5:30 a.m. A required small group devotional time begins at 6:00 a.m. and is scheduled for thirty minutes. Usually devotional time consists of four to five inmates gathering for prayer and reading of Christian scriptures. In most cases, one member of the group actually stands in front of the others, reads scripture out loud, and prays. The form of devotionals takes no required, predetermined structure. Breakfast is at 6:30 a.m., followed by an hour of free time at 7:00 a.m. After breakfast, classes convene from 8:00 a.m. to 10:00 a.m. A unit count occurs at 11:00 a.m. Lunch is at 11:30 a.m.
Afternoon classes resume at 12:30 p.m. and last another two hours, followed by a break period at 2:30 p.m. A community meeting occurs every weekday at 3:00 p.m., and lasts about forty-five minutes to one hour in length. 902 Community meetings sometimes start with a prayer and usually end with a prayer. At community meetings, *902 InnerChange inmates pray, make prayer requests (through which inmates ask that someone's problem or something else be prayed for and the whole group prays for it), sing religious songs, play contemporary praiseand-worship type music, read from the Bible (including things such as birthday cards containing Bible verses), and give a daily devotional message. InnerChange inmates are assigned, on a calendar basis, to prepare a devotional statement to share at community gatherings as well as being assigned to lead a community meeting in prayer. Another unit count is taken at 4:30 p.m. Supper is scheduled for 5:00 p.m., followed by more free time at 5:30 p.m. Evening curriculum classes convene again from 6:00 p.m. to 8:00 p.m. Another period of free time comes at 8:15 p.m. with a final unit count scheduled for 9:00 p.m. Sunday mornings from 8:30 a.m. to 9:45 a.m. are reserved for required church attendance.
Each Friday evening, revivals are held in the gymnasium in Building H from 6:30 p.m. to 8:15 p.m. The revivals are essentially another worship service, but are led by volunteer church groups that tend to fall within the Evangelical Christian camp. Testimony revealed only one instance of a group of non-Evangelical Christians being in charge of leading the Friday night revival. InnerChange inmates are required to bring their InnerChangeprovided Bible to each Friday night revival. Revival meetings are essentially free-form church services that begin with opening songs sung by the group or by leaders, followed by a sermon based on Christian themes, followed by more Christian songs. The volunteer church groups are not coordinated through the Newton Facility chaplain, but through InnerChange offices.
The purpose of these revivals is to, among other things, "proclaim and worship Jesus," "present Christ to InnerChange members and members of the general prison population," and "pray for and minister to the InnerChange members and members of the general prison population." Pls.' Ex. 71 at 1. Revivals also present another opportunity for Inner-Change inmates to entertain visitors outside the regular Newton Facility visiting policy. Since the services are led by local church volunteers, InnerChange inmates look forward to Friday evenings as planned social events. These events are meant to help InnerChange inmates look for possible postrelease church communities they can attend, while also providing a pro-social environment.
Former and current InnerChange inmates testified to a highly structured, busy environment as a key component of the InnerChange unit-based model. The same schedule in Phase I continues unabated into Phase II, except

the two-hour morning class period is replaced with either work duty or school. Also in Phase II of the program, inmates are assigned a mentor. A mentor is an InnerChange volunteer who comes to the Newton Facility once a week and meets with the assigned InnerChange inmate. InnerChange characterizes these mentors as a "friend and a guide supporting you in living the Christian life through the rest of your incarceration and for up to one year after your release." Field Guide (Pls.' Ex. 73 at 7). Phase II also begins the process of turning toward an inmate's post-release needs. Inmates in Phase II meet with Inner-Change counselors who help inmates with housing, employment, and finding a "welcoming church." Id.
Each day in InnerChange usually brings homework assignments. This includes memorizing significant portions of Christian scripture contained in what are commonly referred to as the Old and New Testaments, as well as 903 answering theological questions. InnerChange classes in *903 Phase I take place in Building M and Unit E, while some Phase II classes may also be held in the Newton Release Center. Some videotapes shown in InnerChange classes encourage inmates to pray. Inner-Change inmates are given tests on Bible verses and biblical themes periodically, many of which are graded.
Inmates are required to attend all components of the InnerChange program in order to remain in InnerChange. Each component0907classes, devotionals, community meetings, group sessions, worship services 0907are treated like any other Dept. of Corrections secular treatment program component. In fact, just as in any other full-time treatment program, inmates are financially compensated for the time spent in the InnerChange program. Also, just as in any other treatment program, an absence from any InnerChange component is grounds for official reporting and discipline under both InnerChange and Dept. of Corrections behavioral rules.
Both the Dept. of Corrections and InnerChange have the right to refuse to allow a particular inmate to enroll in InnerChange, and both the Dept. of Corrections and InnerChange have the right to expel inmates from InnerChange. Inmates who resign or are expelled from InnerChange are usually transferred to Unit B, except in those instances when they may be moved to Unit A because they were expelled as a result of a major violation of prison rules. If an inmate was transferred initially to the Newton Facility from another prison or facility in order to take part in InnerChange, that inmate will be transferred back to their sending institution. If already a Newton Facility inmate prior to enrolling in InnerChange, a Newton Facility inmate who resigns or is expelled will normally be returned to Unit C or Unit D0907the GP living units. Before enrolling, Newton Facility inmates are made aware that, if they should resign from the program, they will be sent back to Unit B until reassignment to Unit C or Unit D. If an inmate resigns or is expelled while in the midst of an InnerChange treatment class, e.g., for substance abuse, he will not receive credit for that class, nor may he enter and finish another, similar class that is on-going. [33]
4. Programming in Phase I and Phase II.
Nearly all Dept. of Corrections treatment and education programs available to inmates are prescribed by authorities such as the Iowa Parole Board. In contrast, the Dept. of Corrections considers Inner-Change to be a voluntary program0907inmates may sign up for the program without it being prescribed for them, and once admitted, inmates are allowed to leave the program on their own initiative. Inner-Change does, however, contain all the educational and treatment classes that are traditionally prescribed for almost every inmate in the Dept. of Corrections system: certified substance abuse treatment, anger management, victim impact, criminal thinking, financial management, and marriage0907family0907parenting. When promoting the InnerChange program within the Dept. of Corrections, the InnerChange program is presented as one way an inmate can meet all his treatment program requirements in one setting.
In a sense, all prescribed treatment programs and education classes are voluntary. No inmate is forced to attend rehabilitative classes or programs. Inmates must obtain Dept. of Corrections approval to participate in any 904 program. The refusal to attend *904 these offerings, of course, would be a factor taken into account by the Iowa Parole Board when assessing an inmate's eligibility for parole. On the other hand, the Court found no evidence to support the Plaintiffs' contention that the Iowa Parole Board treats InnerChange inmates differently than other non-InnerChange inmates that come before it.
Of course, the benefit of taking classes in InnerChange is that they can be completed within a single period and that inmates may enter the InnerChange program at an earlier time in their incarceration than they would be able

to if waiting for a traditional Dept. of Corrections class or program. Because of budgetary constraints and limited class size, inmates waiting for traditional classes and programs must wait until they are close to their expected release date. Trial testimony revealed that, not surprisingly, the Iowa Parole Board would likely look favorably on any inmate who took the initiative and completed his recommended programming as early as possible. As with any sentencing decision that, by its nature, must be individualized, the Iowa Parole Board looks to many other factors besides early completion of recommended classes to decide whether an inmate is eligible for an early release.
InnerChange is considered a unit-based residential treatment program by the Dept. of Corrections. Unit-based residential treatment programs are also referred to as "therapeutic communities" or "quasi-therapeutic communities." Besides Inner-Change, the Dept. of Corrections offers therapeutic community programs at other institutions. These programs include the New Frontiers Substance Abuse program at Ft. Dodge, the TCP/DAA Substance Abuse program at Mt. Pleasant, the therapeutic community substance abuse program at Anamosa, The Other Way ("TOW") substance abuse treatment program at Clarinda, the RIVERS program for youthful offenders at Ft. Dodge, the SOTP at Mt. Pleasant, and the therapeutic community substance abuse treatment program at the Iowa Correctional Institute for Women at Mitchellville ("Mitchellville"). Only the SOTP at Mt. Pleasant and the InnerChange program allow long-term participation for months at a time. The InnerChange program is the only therapeutic community or quasi-therapeutic community program at the Newton Facility, as well as the only unit-based residential treatment program available to Dept. of Corrections inmates that is delivered by a private contractor.
Though all the treatment programs are unique, two of the therapeutic communities listed above compare to InnerChange0907the RIVERS and TOW programs. In both programs, offenders live together and take treatment classes together in class settings. Neither program, however, can accommodate a broad range of inmate participants. The RIVERS program is reserved only for youthful offenders and the TOW program is for offenders with mental health or developmental disabilities.
a. Classes and treatment programs.
The unique nature of the InnerChange transformational rehabilitative model is further evidenced in the types of required classes and curriculum materials. There are four broad areas of InnerChange instruction: Spiritual Formation & Transformation; Freedom & Wholeness; Social/Relational/Interpersonal Development; and Re-entry. Pls.' Ex. 388. The following is a list of the curriculum profile in the InnerChange program currently being taught at the Newton Facility: Old and New Testament Survey; Spiritual Freedom; Old and New Testament Literature; 905 Experiencing God; Battlefield of the *905 Mind; Substance Abuse; Anger Management; Victim Impact; Financial Management; Criminal Thinking; Re-Entry; Community Bible Study; Family Series; Computer Training; Principles of Business and Industry; Marriage/Family/Parenting; Mentoring; and Heart of the Problem.
The. Dept. of Corrections recommends to inmates that they take specific treatment classes. Completion of these treatment programs can make parole more likely. The Dept. of Corrections determines when during an inmate's incarceration time the inmate will be allowed to take a particular Dept. of Corrections treatment program. Not every treatment program is offered in every institution. From late 2002 through late 2003, there was no substance abuse treatment program at the Newton Facility, except through InnerChange. During the first twelve months of the InnerChange program, an inmate can complete the following treatment classes: certified substance abuse treatment, anger management, victim impact, criminal thinking, financial management, and marriage 0907family 0907parenting.
The InnerChange religion classes are unique to its program. The religion classes 0907Old and New Testament, Experiencing God, Community Bible Study, Battlefield of the Mind, Heart of the Mind, and Spiritual Freedom 0907are wholly sectarian in nature. The religion classes are not objective inquiries into the religious life, comparable to an adult study or college course, offered for the sake of discussing and learning universal secular, civic values or truths. They are, instead, overwhelmingly devotional in nature and intended to indoctrinate[34] InnerChange inmates into the Evangelical Christian belief system.
An InnerChange course taught in the Spiritual Formation and Transformation area, Battlefield of the Mind, is typical in its approach. Purportedly, most of the stated goals comport with a secular, cognitive approach to

developing healthy life coping strategies. For instance, class participants "will discover how to find peace and stop `brain-storm' thought processes, see the truth by correct thinking, and `how to overcome negative and harmful thinking processes.'" Defs.' Ex. A2. The other stated goal, to "discover how to use faith and spiritual `weapons' effectively," could be interpreted as reflective of any belief system a participant may bring to the class. Id. The single text of the class, however, dispels any idea that a non-devotional approach is being used. In Battlefield of the Mind: Winning the Battle in Your Mind, class participants are taught how to "recognize, and overcome, Satan's lying `wilderness mentalities,'" and "how to flow in the mind of Christ." The text is a work of devotional literature based on countless biblical references. The author reminds students of her prayer and warns that:

The mind is a battlefield!

It is on this ground of the mind that you will either win or lose the war that Satan has launched. It is

906

my most heartfelt *906 prayer that this book will assist you in casting down imaginations, and

every high and lofty thing that exalts itself against the knowledge of God, bringing every thought

into captivity, into obedience to Jesus Christ.

Joyce Meyer, Battlefield (1995) at 259 (Pls.' Ex. 455).

The texts for each of InnerChange's religion courses share the same theological and religious perspective. The text, Experiencing God, for the course with the same name, and the accompanying workbook, Knowing and Doing the Will of God (Pls.' Ex. 429), promise to help readers "deal with many significant questions: What did God have in mind when He chose to save us? What is the corporate nature of God's great salvation?" Henry T. and Melvin D. Blackaby, Experiencing God Together: God's Plan to Touch Your World (2002) at xv (Pls.' Ex. 449). Heart of the Problem a text used for the class with the same name, is another devotional work that, among other things, reflects the Inner-Change transformational approach:

A massive group of people0907intelligent, educated, influential, politically powerful people 0907who have the best interests of humanity at heart, firmly and fiercely reject the concepts of sin, a creator, and a God. You might compare that host of people to a huge giant called Goliath. They firmly believe: God isn't. . . .

In standing up to Goliath our little group might be compared to a little boy called David. We dare to use the word sin and affirm there is no human remedy for sin. You need a Savior who will cleanse you from sin and empower you to walk in the Spirit. . . .

If it is sin, that's good news. Sin is the simplest thing in the world to deal with. Jesus died to cleanse us from sin.

"Too simple," says the Goliath crowd. Make no mistake. The people who approach life from humanistic assumptions make up a huge majority of the people you deal with every day. How long has it been since you had a conversation about sin and its cure?

You need to expand your knowledge of sin so that you know how Jesus can help you. This book will teach you how to live free from the bondage of sin and empower you to enjoy the fruit of the Spirit.

Jesus doesn't need a case history. He knows our hearts.

Henry Brandt & Kerry L. Skinner, Heart of the Problem (1997) at 5-7 (Pls.' Ex. 441).

InnerChange also offers, as stated before, treatment classes in substance abuse, anger management, victim impact, financial management, business, criminal thinking, computer classes, and family-parenting classes that are also provided0907though not under a single program0907throughout the Dept. of Corrections. As presented through the InnerChange program, however, these classes are also used to indoctrinate InnerChange inmates into the Evangelical Christian faith. Only the InnerChange computer training course could be considered thoroughly secular in nature. Even the InnerChange financial management course utilizes a workbook entitled, "How to Manage Your Money: An In Depth Bible Study on Personal Finances," part of "The Christian Financial Concept

Series," in which wealth is defined as "what God entrusts to us." Larry Burkett, How to Manage (1975) at 11 (Pls.' Ex. 435).
No clearer picture of the transformational model at work is shown than in the InnerChange substance abuse program as set forth in the InnerChange Substance Abuse Policy. Pls.' Ex. 389. Former InnerChange Program Director Samuel Dye drafted the entire InnerChange Substance Abuse Instructors Notebook, which is still in use 907 today. The InnerChange substance *907 abuse program, according to current InnerChange Program Director Christopher Geil, is considered "an intensive outpatient substance abuse treatment, [which is] credentialed . every two or three years." Trial Tr. at 1132. The program's license was renewed in the past year. The Substance Abuse Policy minces no words: "The policy of the InnerChange Freedom Initiative (IFI) concerning those with substance abuse problems shall be a faith-based approach, i.e., only Jesus Christ is the cure for addiction." Pls.' Ex. 389 at 1. The introductory paragraph continues:
Efforts will be made to accommodate all relevant issues as proposed by the licensure agencies and/or the American Psychiatric Association as relating to the treatment and care of those with addictive behavior problems only so long as they do not compromise IFI's position that a true cure is found in Jesus Christ. IFI strongly contends that what is often identified as maladaptive behavior and/or substance abuse is caused by man's inadequacies within himself and a need for a right relationship with God. When the issue of sin (alienation) is adequately addressed, reconciliation is possible; and through biblical transformation, the issues of substance abuse can be overcome.
As a licensed substance abuse facility, InnerChange Freedom Initiative, a ministry of Prison Fellowship, shall comply with state codes as administered by the appropriate public policy governmental agency.
Id. The twelve-week program, again, utilizes texts written from an exclusively Evangelical Christian point of view. Three of the seven stated goals for the program explicitly mention Christ. Participants will learn they are "products of Christ," they will learn "to understand the gospel of Christ," and they will learn "to understand our identity in Christ." Pls.' Ex. A2 at 7. In Chapter Six, "Our Identity in Christ," participants are taught that "[s]uccess is attaining God's goals for our lives and by His grace becoming what He has called us to be." Pls.' Ex. 390 at PD1727. Chapter Six closes with an eleven-paragraph long "Doctrinal Affirmation," in which participants declare, among other things, that they "recognize Jesus Christ as the Messiah," "that apart from Christ I can do nothing," and "that the Bible is the only authoritative standard." Id. at 1729. The Substance Abuse class offered by InnerChange reflects the experience of every InnerChange inmate, which is that, except for computer class, each InnerChange class, treatment program, event, or community gathering is used to indoctrinate InnerChange participants into a particular form of the Christian faith. The so-called secular civic values cannot be separated from the larger intent of the curriculum, which is to make Christian disciples in the belief that doing so will transform the inmates into pro-social individuals who will not choose to re-offend when released from incarceration.
Nonetheless, InnerChange considers its substance abuse treatment classes to be secular in nature and makes the remarkable contention that "the [secular] benefit of this instruction likely makes the religious element incidental from a legal perspective." Pls.' Ex. 173 at 3 (emphasis added). In the context of InnerChange staff salaries, particularly of its paid staff counselors, the Executive Director of Inner-Change assured Lowell Brandt, the Dept. of Corrections Director of Programming, that "approximately 80% of staff time is not related to [religious instruction], being of interest to the State because of the religious accommodation of inmates." Id. Nothing could be farther from the truth based on the evidence presented at trial in this case. If anything, the reverse is true 0907the 908 substantial amount of time spent *908 teaching InnerChange classes is overtly sectarian in nature.
b. Quarterly reviews.
During their time in InnerChange, inmates agree to participate in a quarterly review of their progress in the program. InnerChange inmates are expected to improve in attitude and overall progress during their time in the program. Until the first few months of 2005, InnerChange counselors used the Fruit of the Spirit Evaluation to measure inmate progress. See, e.g., Pls.' Ex. 82. The Fruit of the Spirit form rates inmates from a scale of one

("individual is consistently demonstrating a lack of this fruit of the Spirit in his life") to five ("individual is consistently producing this fruit of the Spirit in his life"). Id.
The term "fruits of the spirit" comes from a listing of characteristics contained in the Apostle Paul's letter to the Galatians: love; joy; peace; patience; kindness; goodness; gentleness; self-control. . . . Id. Six months before trial, the Fruit of the Spirit format was replaced by a more secular model called simply, The Quarterly Goals Review. Pls.' Ex. 83. It requires inmates to set goals in different parts of their lives 0907spiritual, physical, educational, daily, work, and social0907rating their monthly progress in terms of the six civic virtues already discussed 0907integrity, responsibility, etc.
Failure to meet InnerChange expectations for growth can result in dismissal from the program. Evidence presented at trial shows that, invariably, dismissals from the program were the result of minor infractions and attitudinal deficiencies. Nonetheless, InnerChange staff were not hesitant to put the reasons for an inmate's dismissal in religious terms. One prisoner was told that, though his conduct was excellent, his demanding and manipulative ways meant that he simply was "not displaying the growth needed to remain in the program. Your focus is not on God and His Son to Change you." Pls.' Ex. 377 at 3. Another inmate was dismissed for having an "unteachable spirit," being spiritually arrogant, lacking in humility, and having a "Messiah Complex." Id. at 6. As to the Messiah Complex, the inmate was warned about his effect on the Inner-Change "congregation":
There was only one sinless person that was Christ Jesus. The cults are filled with those that think they are sinless. . . . In conclusion you have a sincere position of your "sinless perfection" and you are and will be a strong influence on immature people or Christians to stumble and struggle. With these attitudes and qualities you would be destructive to a congregation and take advantage of others upon your release.
Id. The self-understanding of InnerChange staff as presented through trial testimony and exhibits is consistent with the stated policy and strategy informing the transformational model.
Inmates in the program are clearly held accountable in the context of a working Evangelical Christian congregation in which they receive, among other things, all the classes that meet Dept. of Corrections and Iowa Parole Board criteria. The InnerChange congregation, living and working in Unit E and Building M, creates an intimate setting in which inmates often feel safer, more connected to other human beings, and have a greater sense of purpose as understood in its explicitly Christian context. What cannot be separated out from this intimate religious setting, however, is some type of non-sectarian value system that can be accessed by those who refuse to participate actively in the Inner-Change congregational setting. In many ways, the physical 909 setting0907Unit E, Building M, and the Newton Facility gymnasium *909 (for worship)0907the programming, and the daily schedule all combine to create a sort of modern, Evangelical Christian monastic setting in which every waking hour is devoted to living out an intentional Christian experience.
5. Aftercare programming.
No other Dept. of Corrections therapeutic community treatment program comes close to offering the focused, extended aftercare programming available to inmates in InnerChange. An inmate enters phase three ("Phase III") if and when he is placed in a Dept. of Corrections work release center. Phase four ("Phase IV") is experienced if and when an InnerChange inmate is released from prison and lives in the community. In Phases III and IV, inmates are required to attend church weekly, stay employed, and go to a midweek activity that InnerChange considers pro-social in scope. When asked at trial, the Assistant Program Manager for Inner-Change, Steven Casteneda, could not think of one non-Christian inmate in the Inner-Change program located in the Newton Release Center.
During the introduction period, prospective inmates are notified in the Inner-Change Field Guide that, in order to qualify for the InnerChange Aftercare or "IFI Reentry" program, they must agree to be an active member of a local church. Active is defined as "attendance at a weekly congregational meeting (Sunday service) and attendance of a weekly Bible study. This can include a men's group, prayer group, Celebrate Recovery, AA, etc." Pls.' Ex. 73 at 8. The church cannot, however, be just any local congregation. The reentry candidate must agree

to "[a]ttend the church we agree on for at least 3 months before deciding to `church shop.'" Id. (emphasis added). InnerChange promises to provide the reentering inmate a church and a mentor from that church.
The reentry inmate must promise to maintain "sexual purity." Id. The Reentry Agreement continues: "`Each of you know how to possess his own vessel in sanctification and honor' (I Thess. 4:4)." Id. Further direction is targeted at the ostensibly unmarried reentry inmate, who is informed that sexual purity means "no sexual intercourse and no `heavy petting' or inappropriate physical contact." Id. Regardless of marital status, the reentry inmate must "[s]ubmit to the leadership and counsel of your pastor, mentor, and IFI reentry staff [and] abstain from the appearance of evil (I Thess. 5:22)." Id. Indeed, throughout the program, Inner-Change restricts its inmates from having sexually explicit materials in their cells, including materials that other inmates may access under Dept. of Corrections policy. InnerChange's stated reason for the policy regarding sexually explicit materials is that such materials are immoral and degrading to women.
InnerChange also condemns the human experience of homosexuality, teaching that homosexuality is wrong and sinful. Inner-Change's disapproval of homosexuality is based on Prison Fellowship's policy, which is based on Prison Fellowship's understanding of biblical principles. This is in contrast to the Dept. of Corrections official policy, which takes no official stand regarding homosexuality. The only related Dept. of Corrections policy commands that there be no physical contact between inmates or sexual displays, regardless of gender.
The Court found credible the testimony of Clint Kirkpatrick, who testified that his own search for a sexual identity left him feeling alienated and uncomfortable within the InnerChange program. Kirkpatrick was eventually expelled 910 from the Inner-Change program because his telling of a joke based in sexual double entendre demonstrated *910 "a failure to show a significant heart change." Defs.' Ex. Kirk 3 at 1. The InnerChange Counselor who issued the report found Kirkpatrick's reporting of his expulsion to his Dept. of Corrections psychiatric counselor evidence of "counselor shopping," the act of attempting to play one counselor against another. Another inmate in the InnerChange program told Kirkpatrick to "stop his faggot behavior or he would do something about it." Id. at 3. This comment, interestingly, appears to have been used as evidence of Kirkpatrick's impermissible acting out, rather than as evidence of an anti-homosexual bias based in the religious beliefs of the Inner-Change program. The testimony and evidence presented at trial clearly show that the InnerChange program, as practiced at the Newton Facility, indoctrinates inmates in the belief that homosexuality is morally wrong and profoundly sinful.
In Phase IV, InnerChange helps inmates find housing, employment, a mentor, and a church, as well as providing other aftercare services such as case management, intervention in crisis situations, and assistance with securing immediate needs such as clothing and hygiene items. During Phase IV, InnerChange staff monitor whether InnerChange inmates are attending their church regularly. The Inner-Change Aftercare Manager, Rodney Brouwer, considered an inmate's post-release connection to a Christian church vital to the program. An InnerChange inmate can graduate from Phase IV if, for a period of six months, he attends church, is employed, is in contact with his mentor, and demonstrates a lifestyle consistent with the principles taught in the InnerChange in-prison program.
6. Non-Evangelical Christians.
Though explicitly stating that it is open to persons of all faiths, InnerChange's Evangelical Christian transformational model0907in practice0907asks inmates of other religious persuasions to compromise, if not completely abandon, their faiths in order to participate. Testimony revealed a constant tension between Roman Catholic inmates involved in InnerChange and the chronic problem of InnerChange volunteers criticizing Roman Catholic beliefs and practices. To InnerChange's credit, volunteers caught openly disparaging non-Evangelical Christians appear to be disciplined and even expelled from the program. Nonetheless, the Newton Facility's own chaplain would not recommend Inner-Change to a Muslim inmate and would only recommend InnerChange to a Roman Catholic inmate after learning that the Roman Catholic inmate had already spoken to his priest about entering InnerChange. The Newton Facility Chaplain, however, would recommend InnerChange to any nonreligious inmate on a case-by-case basis, if the Chaplain felt InnerChange was appropriate "for his journey." Trial Tr. at 655.
InnerChange's Field Guide clearly warns that non-Christians and those who desire time to observe faith practices not included in the InnerChange program, e.g., Roman Catholics who wish to attend Mass or Native Americans

who wish to participate in the sweat lodge ceremony, may do so only if those observances do not conflict with the InnerChange program requirements. Clearly, the InnerChange program is more amenable to Protestant Christians, particularly those already predisposed to the Evangelical form of Christianity.
InnerChange provides programming to the dominant religious group at the Newton Facility 0907Protestant Christians. The Newton Facility Chaplain estimates that there are approximately 300 Protestant Christians at the Newton 911 Facility, including Mormons and Jehovah's Witnesses. Only a minority of active, practicing inmates *911 who are considered Protestant Christians are not active in InnerChange. Before InnerChange came to the Newton Facility, the Newton Facility Chaplain organized local church groups and volunteers to lead Sunday morning worship for all Protestant Christians at the Newton Facility. These groups represented a diverse set of Protestant faith groups, each exposing the Newton Facility inmates to different liturgical worship forms and expressions. After InnerChange's arrival, Sunday morning worship for all the Newton Facility Protestant Christians was turned over to InnerChange, which offers worship only in the Evangelical Christian style.
Because it is considered a treatment program at the Newton Facility, absence from any InnerChange events or classes is a ground for discipline and may be excused only by InnerChange or the Newton Facility's permission0907even if the absence is to observe one's own religious practices. Any religious observances not in keeping with the InnerChange transformational model must be done during an inmate's free time. Virtually all revivals and worship services are conducted in the Evangelical Christian style; certainly none are conducted by non-Christian faith leaders or groups.
7. Visitors.
A person on the approved visiting list for a Level 4 GP inmate is allowed to visit that inmate up to two times a week; a person on the approved visiting list for a Level 5 inmate is allowed to visit that inmate up to three times a week. This standard rule for Level 4 and Level 5 inmates applies to all inmates, regardless of their relationship to InnerChange. The standard visiting days at the Newton Facility are Friday, Saturday, Sunday, and Monday. The Newton Facility allows InnerChange to hold its "Family Series," formerly the "Alpha Series," program in the Newton Facility visiting room once a week for the three-month duration of the class. The InnerChange family series program takes place in the Newton Facility visiting room on an evening during which the visiting room is closed0907Tuesday, Wednesday, or Thursday.
During the three months of the class, an InnerChange inmate who participates in the Family Series class is eligible to receive more visits than he otherwise would be allowed. The Defendants maintain that the encounters between family members and InnerChange inmates during the Family Series class are not real visits in the conventional sense. Instead, the Family Series encounters are focused, supervised educational and therapeutic sessions designed to strengthen the inmate's familial relationships and define his role as father and husband. Nonetheless, the Inner-Change program allows a participating inmate greater exposure to loved ones than he would otherwise have without the programming.
8. Graduation ceremonies.
InnerChange holds graduation ceremonies for those InnerChange inmates who complete Phases I and II of the program. The graduation service is held in the Newton Facility gymnasium. The service includes an opening prayer, a sermon or speech with religious content, religious singing, and a closing prayer. Inner-Change inmate graduates may invite their families to attend. The service is followed by a simple meal 0907usually comprised of "Pizza Hut" pizza or "Subway" sandwiches0907coded as non-sectarian and paid by the state of Iowa. The food is enjoyed by inmates, volunteers, and InnerChange staff. Inmates in other, non-InnerChange groups or programs 912 must pay for any meals or food outside that provided in the regular course of the prison meal program. *912 All InnerChange inmates who are on parole or probation often attend graduation ceremonies, but are allowed to enter the Newton Facility only upon approval of the warden's office.
9. Baptismal services.
InnerChange periodically holds baptismal ceremonies during which inmates can be baptized by immersion in a state-provided tank. All baptisms in InnerChange are by immersion0907that is, the person being baptized is entirely immersed under water0907a practice consistent with the Evangelical Christian nature of the program. Other

Christian baptismal practices do not involve immersion. Instead, baptismal water is either poured or sprinkled on the new member of the faith. The baptismal ceremonies are usually conducted by InnerChange Program Manager Chris Geil. Inmates are baptized by Inner-Change staff, volunteers, and inmates designated as Biblical Counselors. At one baptismal ceremony, about sixty to seventy InnerChange inmates were baptized. At another ceremony, about the same number were baptized. At yet another ceremony, 103 inmates were baptized.
10. Disciplinary reports.
There are generally two types of disciplinary reports issued to inmates at the Newton Facility 0907major reports ("Class I Reports") and minor reports ("Class II Reports"). Major reports are reserved for serious rule violations0907contraband, fighting, etc. Major reports may only be written by Dept. of Corrections officers. Minor reports are given for less serious offenses. A "behavior report" is an alternative to a minor report, and may be written by InnerChange staff. Regardless of the nomenclature and who writes them up, seven behavior reports will result in an offender receiving a major report. Behavior reports may be instituted by any unit manager throughout the Dept. of Corrections system to manage inmate behavior. However, the only group currently subjected to behavior reports consists of InnerChange inmates. A behavior contract is an agreement between an inmate and correctional staff to address particular problems or issues facing that inmate. Often these agreements contain not just restrictions on behavior, but may also require positive or pro-social behaviors to instigate longterm behavior modification. In the InnerChange program, some behavior contract reports require the inmate to write an essay or complete another assignment on a biblical subject or theme. An inmate who fails to comply with the requirements of a behavior contract or whose rule violation results in a behavior report may be expelled from the Inner-Change program. Likewise, an inmate in any other non-InnerChange treatment program may also be expelled for failure to follow treatment program rules.
11. InnerChange staff.
InnerChange staff, like all staff with security approval, are given general access to Units A through E and may go there to speak with inmates if they desire. An inmate does not have to first express a desire to speak to a staff member before the staff member is allowed to speak with the inmate. The Dept. of Corrections does not participate in the selection of volunteers for the InnerChange program, although the Dept. of Corrections may prohibit certain volunteers from participating for security reasons.
Volunteers play a key role in the daily operation of InnerChange, participating in virtually all aspects of the program. At the Newton Facility, InnerChange calculates that approximately 4,000 volunteer hours are donated 913 annually. Their presence and mission, again, reflect the transformational model, which presupposes that *913 positive secular values and skills can only be incorporated in an inmate's life through spiritual transformation. In the Inner-Change program, that transformation takes place in the context of an Evangelical Christian congregation.
In a memorandum from the former Executive Director of InnerChange, Jerry Wilger, to the former Dept. of Corrections Director of Offender Services, Lowell Brandt, Wilger explained that "volunteers are selected by IFI because they are motivated by the love of Christ to bring a faithbased approach to their program participation. The volunteers' mere presence teaches inmates about the love of Christ for all persons, including inmates, families, and victims and their families." Pls.' Ex. 173 at 1. Though the volunteers make positive non-religious contributions such as forming relationships, teaching vocational skills, and providing opportunities for social work, the most important contribution volunteers bring to InnerChange, according to Wilger, is their demonstration of "the transforming power of the love of Christ and the importance of having caring friends who care because of the love of Christ, and not because they are paid to care." Id. Attempting to meet the state's purpose of lowering recidivism through the transformational model requires Inner-Change to send a double message about the nature of its program. Of course, InnerChange cannot come right out and say that, in order to complete the program successfully, an inmate must be converted to Christianity. On the other hand, the conversion experience is the program's central object. Wilger states in his memorandum to Brandt: "Personal transformation, a permanent inner change, as a result of the love of Christ that is seen concretely in the lives of the volunteers, is a key concept behind the IFI program." Id. The double message is inescapable. Wilger explains: "While conversion to Christ is not required for the inmate participants to successfully complete the program, the volunteers, through the Christ-centered program, teach biblical forgiveness to help inmate participants who have been abused

overcome their difficult past history and better understand victims and the trauma and consequences of crime." Id. To anyone well-acquainted with the program as 0907 are the state Dept. of Corrections management team and the InnerChange staff0907 the object of the Inner Change program is to change inmates' behavior through personal conversion to Christianity. Inner-Change's position that no one actually is required to convert to pass through the program is mere formalism. Every waking moment in the InnerChange program is devoted to teaching and indoctrinating inmates into the Christian faith.
12. Newton Facility Chaplain.
The Dept. of Corrections employs chaplains, who are stationed at Dept. of Corrections institutions. One of the jobs of a prison chaplain is to facilitate and accommodate the ability of inmates to practice the religion of their choice. A prison chaplain employed by the Dept. of Corrections attempts to provide services for all legitimate religions at an institution, answers requests by inmates about their respective religions, and provides pathways to facilitate those requests if the requests are legitimate. Before InnerChange began at the Newton Facility, the Newton Facility prison chaplain conducted Protestant Christian services on Sundays. Currently, InnerChange staff lead Sunday morning services at the Newton Facility. Inner-Change and non-InnerChange inmates alike are invited to the Sunday morning service. The Newton Facility Chaplain coordinates Roman Catholic worship services and events, as well as facilitating Native American sweat lodge ceremonies. Muslim and Jewish inmates' 914 beliefs and needs *914 are also assessed and responded to by the Newton Facility chaplain.
E. Results
According to Warden Mapes, the Inner-Change program inside the prison walls of the Newton Facility benefits the prison community and the InnerChange inmates. Mapes' testimony about his experience with InnerChange summarizes well the evidence presented at trial regarding the inprison effect of InnerChange from the perspective of the Dept. of Corrections. Mapes testified that when he presents tours of the prison, a noticeable shift in atmosphere and attitude occurs when approaching Unit E. He stated: "[Y]ou see inmates who hold the doors, they look you in the eye, they demonstrate prosocial behaviors that are 0907you don't have to tell people, you can just take them on the tour and let them see, and their comment is universal: `What is different here than the others?' And it's the pro-social behavior. It is the thing that we hope [in] corrections make a difference." Trial. Tr. at 1482. Warden Mapes testified that the Dept. of Corrections receives these benefits at a good cost:
[For $310,000], I get a substance abuse program; I get a victim impact program, I get a computer education program, I get pro-social skills programs, and I get engaged inmates who are actively involved in something constructive, keeping them busy, which even inmates have testified to that's a positive thing, and I get supervision of offenders either in classes, in activities, in recreation by somebody other than the limited staff that I have.
Trial. Tr. at 1483.
More significant, however, is the lack of evidence presented by the Defendants about the effect of InnerChange on recidivism. Aside from anecdotes, the Defendants offered no definitive study about the actual effects the InnerChange program has on recidivism rates. Mapes' predecessor, Warden Mathes, communicated his desire early on in the initial RFP process that accountability for the program be included in the contractual agreement between the parties. Specifically, he requested "at least annual program evaluations to include, but not limited to, re-incarceration rates and other measurable outcomes." Pls.' Ex. 195 ¶ 4. But, in fact, there was no information presented at trial about whether Inner-Change participants are more or less prone to recidivism than other inmates.
IV. ESTABLISHMENT CLAUSE
The First Amendment, in relevant part, states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." U.S. Const. amend. I. The First Amendment is applied to the states through the due process clause of the Fourteenth Amendment, thereby preventing "a State from enacting

laws that have the `purpose' or `effect' of advancing or inhibiting religion." See Zelman, 536 U.S. at 648-49, 122 S.Ct. 2460 (citing Agostini v. Felton, 521 U.S. 203, 222-223, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)). Though recent, successive Supreme Court cases have tested the durability of the three-part test set forth in Lemon I, its principles remain intact. "Under the Lemon test, government practice is permissible for purposes of Establishment Clause analysis only if (1) it has a secular purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement with religion." A.C.L.U. Neb. Found. v. City of Plattsmouth, Neb., 419 F.3d 772, 775 (8th Cir. 2005) (en banc) (citing Lemon I, 403 U.S. at 612-13, 91 S.Ct. 2105) (citations omitted). Nevertheless, the "Establishment Clause `cannot easily be reduced to 915 a single test. There are different categories of *915 Establishment Clause cases, which may call for different approaches.'" Elk Grove, 542 U.S. at 33, 124 S.Ct. 2301 (quoting from Kiryas Joel Vill., 512 U.S. at 720, 114 S.Ct. 2481 (O'Connor, J., concurring)).
With respect to government aid, or funding cases, the Supreme Court refined Lemon I in Agostini by providing two other discrete factors to be used when determining whether government funding or involvement has the primary effect of advancing or inhibiting religion.[35] First, the Court must evaluate whether the government program results in governmental indoctrination and, second, whether the government program defines its recipients by reference to religion. Agostini, 521 U.S. at 234, 117 S.Ct. 1997. Lemon I was further modified in Agostini, when the majority concluded that, because the entanglement inquiry consists of essentially the same factors to decide whether entanglement is excessive as does the inquiry to examine effect, "it is simplest to recognize why entanglement is significant and treat it [also] . . . as an aspect of the inquiry into a statute's [or program's] effect." Id. at 233, 117 S.Ct. 1997.
As reassuring as enunciated factors may appear, however, "[r]esolution .. depends on the hard task of judging0907sifting through the details and determining whether the challenged program offends the Establishment Clause. Such judgment requires courts to draw lines, sometimes quite fine, based on the particular facts of each case." See Rosenberger, 515 U.S. at 847-48, 115 S.Ct. 2510 ("Justice Holmes observed in a different context: `Neither are we troubled by the question where to draw the line. That is the question in pretty much everything worth arguing in the law. Day and night, youth and age are only types.' Irwin v. Gavit, 268 U.S. 161, 45 S.Ct. 475, 69 L.Ed. 897 (1925) (citation omitted).") (O'Connor, J., concurring). It is to this task the Court now turns.[36]
A. Secular Purpose
The search into the matter of secular purpose is a purely objective one, "where an understanding of the official objective emerges from readily discovered fact, without any judicial psychoanalysis of a drafter's heart of hearts." McCreary County, Ky. v. A.C.L.U. of Ky., 545 U.S. 844, 125 S.Ct. 2722, 2734, 162 L.Ed.2d 729 (2005) (citing Wallace v. Jaffree, 472 U.S. 38, 74, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985)). "The eyes that look to purpose belong to an `objective observer,' one who takes account of the traditional external signs that show up in the `text, legislative history, and implementation of the statute,' or comparable official act." McCreary County, 125 S.Ct. at 2734 (citing Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (citations omitted)). In McCreary County, the Supreme Court did away with any suggestion that the purpose inquiry was merely a preliminary step or trivial matter; instead, the purpose inquiry is a serious determination of governmental intent. McCreary County, 125 S.Ct. at 2734-35.
916 The Plaintiffs, though wavering at times, still do not concede that the state of Iowa's *916 decision to select and fund the Inner-Change program at the Newton Facility is the result of a dominantly secular purpose. Instead, the Plaintiffs argue that the selection process to choose a pre-release rehabilitation provider shows the state of Iowa's intent to advance religion. The Plaintiffs point to the neutrality purportedly guaranteed by the state RFP procedure, and characterize it as a sham in this instance. See Santa Fe, 530 U.S. at 308, 120 S.Ct. 2266 (citing Wallace, 472 U.S. at 75, 105 S.Ct. 2479) ("When a governmental entity professes a secular purpose for an arguably religious policy, the government's characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to `distinguis[h] a sham secular purpose from a sincere one.'") (O'Connor, J., concurring). Though a public prayer case, Santa Fe's facts prove instructive here. In Santa Fe, a school district's secular policy allowing an invocation to be offered at football games was to "foster free expression of private citizens . . . as well as to solemnize sporting events, promote good sportsmanship and student safety, and

establish an appropriate environment for competition." 530 U.S. at 309, 120 S.Ct. 2266. In light of the history of the football game prayer regulations and other circumstances of the case, the Supreme Court found the invocation at issue in Santa Fe was not necessary to further any of the purposes provided by the school district. Indeed, the Court concluded, one student offering a prayer did not seem to foster free expression, while solemnity is itself a religious message. Id. According to the Plaintiffs, the case is the same here 0907the indoctrination of inmates into the Christian faith is not necessary to meet the stated purpose of implementing the program to reduce recidivism.
A "statute that is motivated in part by a religious purpose may satisfy the first [Lemon I] criterion." Wallace, 472 U.S. at 56, 105 S.Ct. 2479 (citing Schempp, 374 U.S. at 296-303, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring)); McCreary County, 125 S.Ct. at 2736 (when assessing the purely objective purpose of a government's funding or involvement in religion, the courts have traditionally been deferential to state legislative decisions); Lemon I, 403 U.S. at 613, 91 S.Ct. 2105 (recognizing legitimate state concern to maintain minimum school standards and considering the effort by the respective legislatures to include precautionary provisions in program given their understanding that the programs involved could "intrude upon . . . the forbidden areas under the Religion Clauses"); Williams v. Lara, 52 S.W.3d 171, 191 (Tex.2001) (encountering evidence that public officials were motivated by religious reasons to set up a similar religious education program to the one here, but not concluding, as a matter of law, that the religious motives outweighed the legitimate penological concerns behind the selection of an education program in a prison). The facts in this case do not quite bear out the Plaintiffs' allegations. The facts do show that highly placed corrections officials 0907Kautzky, the Director of the Dept. of Corrections, and Iowa Parole Board Member Chuck Hurley0907were interested in the InnerChange program because of their belief that spiritual transformation would be a tonic for the ills of recidivism. Evidence also revealed that, even before the initial RFP was issued, Kautzky had every intention of bringing the program to Iowa. A substantial part of this evidence was the gerrymandered RFP, based on a model provided by InnerChange. Kautzky, and the correctional officials charged with inmate programming, however, were also confronted with the secular, pragmatic needs of running a state prison facility with sufficient programming in a 917 tight budgetary environment. Further, the facts reveal that some corrections officials also considered *917 the long term nature of the Inner-Change program, its supportive communal environment, and its extensive postrelease care program, as the best indicators that the InnerChange program could reduce recidivism, turning a blind eye to the inherently religious means to these otherwise neutral ends. In cases where the proffered purpose was found to be a sham, "the unsurprising results have been findings of no adequate secular object, as against a predominately religious one." McCreary County, 125 S.Ct. at 2736. Here, the objective history of the selection process, which resulted in InnerChange coming to Iowa, shows that state officials at all levels were motivated by a variety of factors, but that their primary purpose was to reduce recidivism among Iowa inmates. Further, though evidence shows InnerChange received a warm welcome at the Dept. of Corrections Board, state Legislature, and Governor's Office, no evidence shows that the promotion of religion was the primary concern of those state officials in passing legislation authorizing funding. The purpose inquiry is, accordingly, satisfied on the facts presented.
B. Primary Effect
1. Pervasively sectarian.
A governmental entity is at the greatest risk of impermissibly advancing religion when the "government makes direct money payments to sectarian institutions." See Rosenberger, 515 U.S. at 842, 115 S.Ct. 2510 (affirming citations to Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 747, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976); Bowen v. Kendrick, 487 U.S. 589, 614-15, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988); Hunt v. McNair, 413 U.S. 734, 742, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973); Tilton v. Richardson, 403 U.S. 672, 679-80, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971); and Bd. of Ed. of Central Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968)). The Establishment Clause requires: "1) that no state aid at all go to institutions that are so `pervasively sectarian' that secular activities cannot be separated from sectarian ones, and 2) that if secular activities can be separated out, they alone may be funded." See Roemer, 426 U.S. at 755, 96 S.Ct. 2337. While the plurality opinion in Mitchell v. Helms maligned the "pervasively sectarian" inquiry, it remains the law. See 530 U.S. 793, 840, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) ("Although `our cases have permitted some government

funding of secular functions performed by sectarian organizations,' our decisions `provide no precedent for the use of public funds to finance religious activities.'" (quoting Rosenberger, 515 U.S. at 847, 115 S.Ct. 2510) (O'Connor, J., concurring) ). Despite the uncertain future of the pervasively sectarian inquiry, this Court is bound to follow the law as it stands, rather than speculating as to how it may develop. See Agostini, 521 U.S. at 237-38, 117 S.Ct. 1997 (directing lower courts to follow precedent even though it may appear to rest on reasons rejected in other cases, leaving the Supreme Court to reinterpret its past decisions); Columbia Union Coll. v. Oliver, 254 F.3d 496, 508 n. 2 (4th Cir.2001) ("[L]ower courts should not interpret even seismic shifts in Establishment Clause jurisprudence as signifying that prior Court decisions have been overruled indirectly."). The Court now turns to the question whether, based on the facts presented at trial, the InnerChange program is pervasively sectarian, and if so, whether diversion of state funding to its sectarian components is impermissibly present.
a. Pervasively sectarian in nature.
"Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it 918 funds a *918 specifically religious activity in an otherwise substantially secular setting." Hunt, 413 U.S. at 743, 93 S.Ct. 2868. "To answer the question whether an institution is so `pervasively sectarian' that it may receive no direct state aid of any kind, it is necessary to paint a general picture of the institution, composed of many elements." Roemer, 426 U.S. at 758, 96 S.Ct. 2337. As Roemer, Hunt, and Tilton demonstrate, however, private sectarian institutions may benefit from state funding.
In Hunt, the challenged statute authorized the use of revenue bonds, monitored by a state agency, to assist the Baptist College at Charleston ("Baptist College") to finance construction and other related projects. Hunt, 413 U.S. at 737, 93 S.Ct. 2868. No state general funds were used to fund the project. Id. at 738, 93 S.Ct. 2868. The Supreme Court found that Baptist College was not a pervasively sectarian institution though manifestly a religiously-affiliated school and governed by a religious organization. The Court found that there were "no religious qualifications for faculty membership or student admission, and . . . only 60% of the students were Baptist, a percentage roughly equivalent to the percentage of Baptists in the area." Id. at 733-44, 93 S.Ct. 2868.
Unlike Hunt, the funding in Tilton was in the form of federal grants for the expansion of college and university facilities, including grants to religiously-affiliated institutions, but expressly excluded construction of facilities for sectarian instruction or worship. 403 U.S. at 676, 91 S.Ct. 2091. In Tilton, the Court found no evidence that the Roman Catholic colleges in question used the federally financed buildings for religious indoctrination 0907one was used as a language laboratory in foreign modern languages, and others were used for the study of science, music, drama, and the arts. Id. at 681, 91 S.Ct. 2091. The parties stipulated that each of these areas of study was "taught according to the academic requirements intrinsic to the subject matter and the individual teacher's concept of professional standards . . . [and] the schools were characterized by an atmosphere of academic freedom rather than religious indoctrination." Id. The Court went on to find that the four defendant colleges did not fit the "composite profile" of typically sectarian institutions of higher learning that could preclude funding under the Establishment Clause. Pervasively sectarian institutions would, among other things, impose "religious restrictions on admissions, require attendance at religious activities, compel obedience to the doctrines and dogmas of faith, require instruction in theology and doctrine, and do everything [they could] to propagate a particular religion." Id. at 682, 91 S.Ct. 2091. In Roemer, the Court relied on Hunt and Tilton to find, again, that colleges or universities could receive state funds when those institutions were relatively free from denominational control, religious exercises were not mandatory, religious practice0907including prayers in class0907was merely encouraged, and each institution was committed to the principles of intellectual freedom and academic excellence. Id. at 758-59, 91 S.Ct. 2091.
In Committee for Public Education and Religious Liberty v. Nyquist, the Supreme Court invalidated a New York statute that authorized funding of nonpublic elementary and secondary schools through maintenance grants, tuition reimbursements, and tax benefits. 413 U.S. 756, 763-64, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). Because the case was brought as a purely statutory challenge, and thus contained no factual record for each institution affected by the law, the Court recognized the district court's broad profile of institutions that would qualify for the state funding. These institutions:

919

a) impose religious restrictions on admissions; b) require attendance of pupils *919 at religious

activities; c) require obedience by students to the doctrines and dogmas of a particular faith; d)

require pupils to attend instructions in the theology or doctrine of a particular faith; e) are an

integral part of the religious mission of the church sponsoring it; f) have as a substantial purpose

the inculcation of religious values; g) impose religious restrictions on faculty appointments; and h)

impose religious instructions on what or how the faculty may teach.

Id. at 767-68, 93 S.Ct. 2955. In the context of this type of religion-oriented institution, it would not be "possible . . . to impose restrictions" intended to safeguard the distinction between sectarian and secular expenditures. Id. at 774, 93 S.Ct. 2955.

Based on these cases, the Defendants are correct to cite Hunt for the proposition that an institution is not pervasively sectarian merely because it is religiously affiliated. 413 U.S. at 743-44, 93 S.Ct. 2868. Rather than analyzing the facts present here under the relevant case law, the Defendants invite the Court to consider the cases in the Free Speech arena, such as Good News Club, 533 U.S. 98, 121 S.Ct. 2093, 150 L.E d.2d 151 (2001), and Bronx Household of Faith v. Board of Education of City of New York, 400 F.Supp.2d 581 (S.D.N.Y.2005). Under these cases, the Defendants maintain, the InnerChange program is not pervasively sectarian because its use of secular values can be separated from the program's religious viewpoint. Good News Club and Bronx Household are irrelevant to the inquiry here. As mentioned in footnote twelve, supra, the issue presented here is not whether a "standard moral code," as the Defendants describe it, can be taught at the Newton Facility from different religious or nonreligious vantage points, but whether that moral code presented by InnerChange can, in fact, be separated from the state-funded, religious vehicle in which it is presented.

The Defendants often counter the Plaintiffs' claims by seeking refuge in cases protecting private, religious speech or the accommodation of religion. What the Defendants' arguments ignore is that Inner-Change and Prison Fellowship, in this case, are not private actors0907they are state actors. As a state actor, InnerChange speaks on behalf of the government. It is not simply another voice in a forum opened for a discussion of the best 920 rehabilitation programs for state prisoners.[37] Neither is *920 this case about the right of InnerChange and Prison Fellowship to practice their religion and be allowed to compete in an open marketplace for rehabilitative service providers. Again, as state actors, Inner-Change and Prison Fellowship employees cloak themselves in the mantel of government. As providers of a state-funded treatment program, they are burdened with the same responsibilities of any state employee: to respect the civil rights of all persons, including the First Amendment's prohibition on indoctrinating others in their form of religion. In the context of this case, the Defendants have no legitimate interest in the accommodation of their own religious beliefs, but just the opposite. As state actors, their interest in "avoiding an Establishment Clause violation `may be characterized as compelling.'" See Good News Club, 533 U.S. at 112-13, 121 S.Ct. 2093 (citing Widmar v. Vincent, 454 U.S. 263, 271, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (emphasis added)).

The InnerChange program is pervasively sectarian in nature. This conclusion does not, as the Defendants warn, require the Court to "parse through hymns, verses, teaching, and ritual to separate `mere worship' from the teaching of character and morals." Bronx Household, 400 F.Supp.2d at 598.[38] The pervasively sectarian inquiry does not consider the theological beliefs or dogmas cherished by the institution in question. Instead, the inquiry looks at the recognizable factors that indicate whether, in practice, "aid . . . flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting." Hunt, 413 U.S. at 743, 93 S.Ct. 2868.

There are many factors that drive the conclusion that the InnerChange program is pervasively sectarian. The program requires attendance at worship services, religious community meetings, and weekly revivals, and orders its participants to engage in daily religious devotional practice. Furthermore, participants are required to lead prayers and share, publically, a personal devotional at the weekly community meeting. InnerChange instructors and employees must sign the Prison Fellowship Statement of Faith. The curriculum is restricted and does not stray from the religious beliefs stated in the Statement of Faith. InnerChange teachers and counselors are allowed to teach only a pre-set, imposed religious curriculum authorized by InnerChange and Prison Fellowship.

Though an inmate could, theoretically, graduate from InnerChange without converting to Christianity, the coercive nature of the program demands obedience to its dogmas and doctrines.
Further, InnerChange is an integral part of the religious mission of Prison Fellowship and is under Prison Fellowship's complete control. Unlike colleges and universities, InnerChange is not characterized by an atmosphere of academic freedom. It is devoted to inculcating religion as described in its own explanation of the transformational model. Every class, save for the computing class, uses materials derived solely from the perspective of Evangelical Christian faith. Inner-Change's daily activities, its required religious qualifications for 921 employees, and the fact that it was chosen by the state, in *921 part, because its religious nature was viewed as a cure for the ills of recidivism, can only lead to the conclusion that its non-sectarian aspects are substantially subsumed within its religious nature.
b. Whether separation of Inner-Change's sectarian and secular aspects is possible.
Funding of a sectarian institution is not forbidden when the inherently religious nature of the institution can be separated from its secular work. See Bowen, 487 U.S. at 621, 108 i.Ct. 2562 ("[I]t is not enough to show that the recipient of a challenged grant is . . . `religiously inspired'. . . . [A] district court should also consider whether . . . [government] aid has been used to fund `specifically religious activities in an otherwise substantially secular setting.' Hunt, 413 U.S. at 743, 93 S.Ct. 2868."); see also Children's Healthcare is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1100 (8th Cir. 2000) (CHILD II) (affirming the district court's decision that a Christian Science sanitoria was not a pervasively sectarian facility because its primary function was to provide physical nursing services to sick individuals and the physical services were separable from any religious activity taking place within the sanitoria), cent denied, 532 U.S. 957, 121 S.Ct. 1483, 149 L.Ed.2d 372 (2001); Pulido v. Cavazos, 934 F.2d 912, 923 (8th Cir.1991) (assuming that private elementary schools were pervasively sectarian, but allowing the government's remedial training program, provided in separate mobile classrooms on parochial school property, to remain because the remedial program was offered in a "truly religiously neutral location"). The principle that a government may fund the secular work of a religious institution is a longstanding one. See Roemer, 426 U.S. at 746, 96 S.Ct. 2337 (citing Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899) (allowing federal funding of a hospital run by a Roman Catholic sisterhood)). Simply put, "a religious motivation on behalf of a party providing secular services does not transform such services into religious activity." CHILD II, 212 F.3d at 1100. In the statutory challenge analysis of the federal funding in Bowen, the matter at hand involved grants to institutions to promote responsible adolescent pre-marital sexual behavior. The Court decided that the projects contemplated by the statute0907pregnancy testing, adoption counseling, prenatal and postnatal care, educational services, child care, consumer protection0907were not "themselves `specifically religious duties,' and . . . are not converted into such activities by the fact they are carried out by organizations with religious affiliations." Bowen, 487 U.S. at 613, 108 S.Ct. 2562.
It is conceivable that the traditional state rehabilitation classes 0907certified substance abuse treatment, anger management, victim impact, criminal thinking, financial management, and marriage/family/parenting 0907could be separated from an institution's religious orientation. Teachers could be chosen, for example, without reference to religion and the course curriculum could be based on standardized materials chosen based on factors other than religious orientation. That is not the case presented on the facts here.
The transformational model employed by InnerChange at the Newton Facility makes it impossible to distinguish between the secular and sectarian aspects of its rehabilitation programming. This is in contrast to Mitchell, where a teacher in a religious school used government-funded educational tools as a mere part of a single daily class. Mitchell 530 U.S. at 860, 120 S.Ct. 2530. Neither can the InnerChange classes compare to the offering of 922 remedial education by government teachers on the premises of a private, sectarian school. *922 Agostini, 521 U.S. at 234-35, 117 S.Ct. 1997. In Zobrest v. Catalina Foothills School District, 509 U.S. 1, 10-14, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993), the work of a government-funded interpreter on the premises of a sectarian institution could be separated from the purposes of the institution itself. Likewise, in Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 487-89, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986), the funding of vocational assistance to a sectarian institution to aid a visually-impaired student is distinguishable from the purposes of the institution that student chose to attend. Here, the secular work or service of Inner-Change, offering a pre-release rehabilitation program, cannot be separated from the means by which the delivery of that

service is made0907intentionally submersing inmates into the life of a functioning Christian congregation within a prison living unit.
The overtly religious atmosphere of the InnerChange program is not simply an overlay or a secondary effect of the program it 0907 is the program. There are no separate educational and religious functions in the InnerChange program as there were in Agostini or, as eventually determined, in School District of City of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985). See Agostini, 521 U.S. at 235, 117 S.Ct. 1997 (overruling its previous decision in Ball). In Ball, the state-funded remedial courses, which were required to be part of an accredited school program, were offered in non-public schools but taught by public school employees. The Ball "share time program" only took up "ten percent of any given nonpublic student's time." Ball, 473 U.S. at 375, 105 S.Ct. 3216. Here, every activity0907worship services, revivals, community meetings, daily devotionals is 0907 organized and developed by the InnerChange program and is designed to transform an individual spiritually. Even the otherwise traditional rehabilitation classes themselves, as set forth above, have been turned into classes intended to indoctrinate inmates into the Christian faith. The Court finds the testimony of Norm Cox and other InnerChange witnesses less than credible when they state InnerChange does not attempt to convert inmates to Christianity. Virtually every piece of curriculum material is devotional in nature. Every problem faced by inmates in their personal lives is defined according to an exclusively theological word: sin. Every answer to an inmate's personal dilemmas involves a conversion to belief in Christ. Teachers and counselors cannot even be employed without accepting these basic InnerChange propositions. In the InnerChange program, the secular task of changing criminal behavior is an essentially religious one, in purpose and in fact.
The Defendants argue that the facts presented prove that the InnerChange staff does not try to "coerce or persuade inmates to adopt the specific Christian beliefs taught in the program." Defs.' Joint Reply to Pls.' Amended Proposed Findings of Fact and Conclusions of Law at 9. What the Defendants do not acknowledge is that prisons are inherently coercive environments, something the Supreme Court has recognized in the context of delivering medical services. See Atkins, 487 U.S. at 57 n. 15, 108 S.Ct. 2250 ("[P]risons and jails are inherently coercive institutions that for security reasons must exercise nearly total control over their residents' lives and the activities within their confines; general schedules strictly regulate work, exercise, and diet. These factors can, and most often do, have a significant impact on the provision of medical services in prisons."). While the Atkins Court considered the effects of the prison environment on limiting the medical decisions of a physician, thereby making 923 clear his role as a state actor, the same environment is also at work in the rehabilitation context. *923 From the perspective of inmates, the InnerChange staff shared many of the same duties as state correctional officers and other state prison employees, such as counselors.[39] Warden Mapes considered it a benefit that he did not have to pay for correctional officer time because Inner-Change provided inmate supervision. InnerChange staff are vested with the authority to impose punishment according to state Dept. of Corrections and Inner-Change codes of prison conduct. Evidence that InnerChange staff considered themselves peers in relation to state employees was the decision, mentioned above, to discipline an InnerChange inmate for "counselor shopping" because he had communicated to a state prison counselor his displeasure about the InnerChange program. Moreover, InnerChange inmates are also in a spiritual mentoring relationship with InnerChange staff, who provide spiritual and mental health counseling. The teachers and counselors charged with the control of every aspect of an inmate's physical existence and spiritual existence in the InnerChange program are the same persons who lead communal worship services, make sure inmates are attending religiously-inspired classes, and grade them in the program for signs of "authentic progress." To say that such an environment is not intended to coerce or persuade conversion to Christianity is a remarkable assertion.[40]
The Defendants argue that the state of Iowa pays, pursuant to the contract terms, for only those aspects of the program that are non-sectarian in nature. They point to the percentages of employees' salaries and other daily expenses allocated according to sectarian and non-sectarian time. There is, however, no way to accurately account for any employee's time in the InnerChange program in such a pervasively sectarian context.[41] Neither 924 can Inner-Change's *924 billing to the state for non-salary expenses as non-sectarian be relied upon. "The Supreme Court has systematically rejected attempts to unbundle religious activities through statistics and accounting." Freedom from Religion Found., Inc. v. McCallum, 179 F.Supp.2d 950, 974 (W.D.Wis.2002) (Freedom from Religion I). In Nyquist, the Court did not accept the sectarian schools' assurances that public funds would be safeguarded through the use of percentages: "Quite apart from the language of the statute, our

cases make clear that a mere statistical judgment will not suffice as a guarantee that state funds will not be used to finance religious education." Nyquist, 413 U.S. at 778, 93 S.Ct. 2955.
This is not to mention the substantial investment of in-kind aid to support the rehabilitation process offered by Inner-Change. Building M, Unit E, and other Newton Facilities, like the gymnasium, are wholly given over to the InnerChange program. Other in-kind aid includes Inner-Change office and class furniture, as well as transportation of InnerChange inmates to the Newton Facility. The Defendants correctly state that this in-kind support would be necessary for any type of similar, therapeutic rehabilitation program at the Newton Facility, and is of no extra cost to the Iowa taxpayer. Missing in this assertion, however, is the basic principle at work in this case that, when used in the service of indoctrinating religious belief, in-kind giving is no longer considered neutral state funding under the Establishment Clause. Rather, it is tainted with the impermissible advancement of religion.
As set forth in the facts presented above, even the definition of what constitutes sectarian and non-sectarian expenses has not been resolved0907except that state officials are content to believe what Inner-Change and Prison Fellowship consider religious or non-religious for billing purposes. See Mitchell, 530 U.S. at 832, 120 S.Ct. 2530 (finding agreement in the Court that mere signed assurances that government aid will be used for nonideological purposes are unavailing); see also New York v. Cathedral Acad., 434 U.S. 125, 133, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977) (stating that attempting to search out "what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment"). Even if religious meanings could be ironed out, there is no actual state monitoring. See Mitchell at 832 n. 15, 120 S.Ct. 2530 (finding inadequate the agency officials' monitoring of a program as best they can when reviews occurred only once every three years). The accounting in the InnerChange local office also reflected confusion among, at least, the Inner-Change Office Administrator and other InnerChange employees about what categories should be used for items like church music licensing, religious graduation gifts, and printing materials. See id. at 833, 120 S.Ct. 2530 (finding a haphazard approach to labeling equipment as government owned as evidence of inadequate safeguards). This is to say nothing about the nature of the InnerChange salaries, each of which is paid partly by state funds and partly with private funds. In short, there is no way to guarantee that public funds are used only for secular portions of the InnerChange program.
In the sectarian school settings in Mitchell, Agostini, Zobrest, and Witters, publically funded teachers, interpreters, 925 vocational instruction, and equipment were discrete objects of public funding that *925 could readily be walled off
from sectarian activities. "In those instances in which the Court has permitted funding to flow to religious schools, it has been in the context of a targeted grant, available to a limited population, for a specific purpose." Freedom from Religion I, 179 F.Supp.2d at 974 (quoting Strout v. Albanese, 178 F.3d 57, 62 (1st Cir.1999)). Even when secular aid could not be walled off from some sectarian activity, as in Mitchell Justice O'Connor determined the evidence of diversion in that case de minimus and, therefore, the public funding involved was not in grave danger of advancing religion. Here, however, the state funding unquestionably supplants, rather than merely supplements "the regular curricula" of the InnerChange program. See Mitchell 530 U.S. at 848, 120 S.Ct. 2530 (continuing to consider whether aid supplants or merely supplements a religious institution as evidence of the primary effect of that aid) (O'Connor, J., concurring); see also id. at 815 n. 7, 120 S.Ct. 2530 ("Our case law does provide some indication that this distinction [supplanting aid versus supplementing aid] may be relevant to determining whether aid results in governmental indoctrination, see Agostini, 521 U.S. at 228-229, 117 S.Ct. 1997; Zobrest, 509 U.S. at 12, 113 S.Ct. 2462; but see Ball 473 U.S. at 396, 105 S.Ct. 3216, but we have never delineated the distinction's contours or held that it is constitutionally required.") (plurality opinion). Though InnerChange funding also comes from private sources through its parent, Prison Fellowship, a substantial portion of its programming comes from state funding. To the extent Defendants argue that InnerChange could operate completely through private funding in a separate location, those facts are not before the Court. Even if true, the amount of funding involved in this case, itself, indicates that the state funding does more than merely supplement InnerChange salaries and expenses. Here, the facts presented show not only diversion, but direct and in-kind funding of a pervasively sectarian institution's implementation of a program in which no set of enforceable safeguards or standards can be erected that would enable funding of only the secular aspects involved. Under the pervasively sectarian analysis, by funding the InnerChange program, the state of Iowa impermissibly advances religion in violation of the Establishment Clause.

2. True private choice.
The Defendants argue that the funding here is not direct, but indirect. They maintain that, regardless of the sectarian nature of the InnerChange program, the type of public funding here is permissible because it is the result of the true, private choice of inmates to participate. See Zelman, 536 U.S. at 663, 122 S.Ct. 2460 (observing that the Court's decision made permissible, for the first time, unrestricted funds to recipient sectarian schools) (O'Connor, J., concurring). "Mueller[ v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983)] Witters, and Zobrest . . . make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause." Id. at 652, 122 S.Ct. 2460. The Court went on: "A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients." Id. "The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits." Id.
926 *926 Justice O'Connor explained in Zelman, notwithstanding that it was the first time the Supreme Court allowed unrestricted funds to flow to sectarian schools, that the Court's decision was not a "major departure from . . . prior Establishment Clause jurisprudence." Id. at 688, 122 S.Ct. 2460 (O'Connor, J., concurring). Justice O'Connor reassured courts that the same type of inquiry in funding cases remains. In deciding whether the state funding of InnerChange is permissible, therefore, this Court must consider two factors: 1) "whether the program administers aid in a neutral fashion, without differentiation based on the religious status of beneficiaries or providers of services; 2) and more importantly, whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they direct that aid." Id. at 669, 122 S.Ct. 2460 (O'Connor, J., concurring). "If the answer to either query is `no,' the program should be struck down under the Establishment Clause." Id.; see also Agostini, 521 U.S. at 226, 117 S.Ct. 1997 (explaining that governmental indoctrination is not present where the aid is a "`result of the private decision of individual[s] and could not be attributed to state decision making") (quoting Zobrest, 509 U.S. at 10, 113 S.Ct. 2462). The facts presented here reveal that the state funding of the InnerChange programming fails on both counts.
First, despite the Defendants' refrain that the state's RFP process guaranteed a neutral choice of a rehabilitation provider, the facts show that InnerChange was the only real contender in the bid process. The initial pre-RFP negotiation period, a common governmental procurement process, was a pretext for the inevitable awarding of the rehabilitation contract to InnerChange and Prison Fellowship. The state officials in the Dept. of Corrections, the Dept. of Corrections Board, the Parole Board, the state Legislature, the offices of the Attorney General, and the Governor were all aware that the values-based program offered by InnerChange was set in the context of a Christ-centered, biblically based sectarian environment. The evidence presented shows that the initial RFP, itself, was essentially a gerrymandered document based on the RFP contract already in place in the state of Texas for the same type of program in order to ensure that the InnerChange program would come to Iowa.[42] Though some institutional-level corrections officials did not care about what type of vehicle the rehabilitation programming came in, evidence shows that the overtly religious nature of the Inner-Change program was not seen as a hindrance, but a positive benefit.
In Zelman, the Court found no evidence that the Ohio voucher system was developed because the religious message taught at sectarian schools was viewed as providing the answer to the educational ills of inner city 927 school children. 536 U.S. at *927 653-54, 122 S.Ct. 2460. Instead, those who implemented the Ohio program did so under the belief that poor children in failing schools should and could be assisted in obtaining a quality education. In Mitchell, again there was no evidence that the government preferred what was actually taught at religious schools over others. "Relying on Witters and Zobrest, we noted that our cases had taken a more forgiving view of neutral government programs that make aid available generally without regard to the religious or nonreligious character of the recipient school." See Mitchell 530 U.S. at 847-48, 120 S.Ct. 2530 (O'Connor, J., concurring) (citing Agostini, 521 U.S. at 225-26, 117 S.Ct. 1997). This is not the case here. Here, the state officials charged with administering the funding for a rehabilitation program resorted to a non-neutral RFP process that favored InnerChange's religious model with the result of limiting the pool of possible providers.

Second, the program defines the ultimate beneficiaries0907the inmates by 0907 religion through creating incentives to join InnerChange. See Mitchell 530 U.S. at 845, 120 S.Ct. 2530 (O'Connor, J., concurring) (reaffirming the Agostini effects criteria that, along with causing indoctrination and entanglement, government aid must not define "its recipients by reference to religion"). The "scrutiny of the manner in which a government-aid program identifies its recipients is important because the criteria might themselves have the effect of advancing religion by creating a financial incentive to undertake religious indoctrination.'" See Mitchell 530 U.S. at 845, 120 S.Ct. 2530 (quoting Agostini, 521 U.S. at 231, 117 S.Ct. 1997). "Such incentives laze] not present . . . where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a non-discriminatory basis.'" See Zelman, 536 U.S. at 653-54, 122 S.Ct. 2460 (quoting Agostini, 521 U.S. at 231, 117 S.Ct. 1997). In Zelman, for example, parents not only were offered no incentives to favor the choice of a sectarian religious education for their children, the challenged program included the disincentive of a copy requirement for those who chose to participate in a scholarship program "and then enroll their children in a private school (religious or nonreligious). . . ." See 536 U.S. at 654, 122 S.Ct. 2460 (explaining that while disincentives are not necessary, their presence dispels the idea that a program is unconstitutional for these reasons).
The evidence presented at trial shows that the state and InnerChange provide incentives to inmates to join the program. The incentives come in the form of better conditions once associated and reserved for honor unit inmates and an opportunity to complete the required courses of rehabilitation classes before it would be otherwise possible. After hearing the testimony of inmates and experts alike regarding the difference in living conditions between InnerChange and GP inmates, the Court was reminded what a tremendous shift in perspective occurs once a person is placed in a prison. What appears insignificant to those accustomed to a wide range of normal freedoms outside of prison can be of great value and import to someone whose every minute is managed by others.
When InnerChange moved into the Newton Facility, it took over what was formerly referred to as an honor unit. The honor unit, with its wooden doors, separate toilet facilities, dry cells, access to one's own cell key, and generally safer environment, looks and feels very much like the prison it is. To an inmate, however, these 928 seemingly minor benefits are desirable reminders of the freedoms associated with being a trusted prisoner. *928 Plaintiff0907inmate Hammers put it this way when explaining how he felt upon being provided his own key and being in Unit E generally:
You always feel better about yourself, that you're doing good, and about your environment when you have a little bit of control over your environment, whether it be as small as the door to your cell that the guards can get in at any time, or whether it's somebody not flushing a toilet a foot way from your bed, it just makes you feel good inside. You ain't as prone to be aggressive. You tend to let things slide because being on E means you're responsible enough or 0907 somebody thinks you're responsible enough to be there.
Trial Tr. at 56.
The dry cells in Unit E also provide a measure of privacy and distance from the most basic of bodily functions. Human voiding, explained Gordon Kampka,[43] is a private human act that is preferably done in private, with partitions shielding one from view. Inmates, Kampka reported, would prefer communal restroom facilities, with their partitions and porcelain instead of stainless steel toilets situated in a shared room.
Other InnerChange-related entertainment also can be considered privileges. It became clear at trial that there was not an InnerChange "big screen" projection television as described in Plaintiffs' pre-trial documents. Instead, once a week or so, a movie is projected onto a standard, somewhat frail-looking, classroom white-board for InnerChange inmate group viewing. While a privilege hardly worth mentioning outside of the prison context, inside the prison, this simple act of communal movie viewing is a small piece of normalcy in an otherwise bleak world. This experience is not available to GP inmates. Likewise, pizzas and sandwiches, as well as the privilege of being allowed to sit with a close family member or friend at graduation ceremonies, are all characteristic of normal human interactions outside of prison. The use of everyday items provided to Inner-Change inmates at state expense0907papers, pens, folders, pencils, three-ring binders, etc., for study and personal use 0907also allow an

inmate to experience incremental moments of normalcy unavailable to other Dept. of Corrections inmates. There is no question that prisons, and the Newton Facility in particular, may set aside an honor section of the prison for non-violent, well-behaved, and low-risk inmates. It is not surprising that such honor sections are more inviting environments in which to live, as compared to the rest of the prison. These environments may be characterized by better living quarters, which are less noisy, less crowded, etc., and provide more autonomy. Such settings may also allow the use of items not generally available to the general population 0907more computer time, for example0907and the ability to take required classes and counseling. Setting aside any religious considerations, honor program areas are reasonably meant to encourage inmates to behave well and focus on rehabilitation by 929 allowing them to serve their time with more freedom and greater dignity. To say these benefits are *929 no longer in effect with the coming of InnerChange is to ignore realities of prison life. There is nothing wrong with incentives to encourage better behavior. In this case, however, the honor setting in Unit E was converted not only to promote better behavior, but also to encourage spiritual growth and transformation. Spiritual growth and transformation may be vital to changing an inmate's behavior, but the state may not use honor unit incentives to endorse and promote that transformation. For state actors to do so is to impermissibly advance religion.
The Defendants argue, however, that InnerChange's rigorous, demanding schedule, that allows for very little personal time, no television, and no pornography, more than offsets any small gains in privilege. In fact, the Defendants argue, "InnerChange time" is much more difficult than doing "regular time" in the average Dept. of Corrections facility. Yet, Inner-Change describes the busy schedule as beneficial. In a fictionalized, first-person account of what life is like inside Inner-Change, an inmate who had been a member for nineteen months exclaims: "I can't believe I've been in the program this long. The time ha[s] gone by really fast. And in prison, that's very good." Pls.' Ex. 74 at 13. Other incentives to joining Inner-Change include personal safety, a feeling of community, and an excellent aftercare program. These benefits are so compelling that even some of the Plaintiff0907inmates expressed a desire to return to InnerChange if they could. Again, benefits to encourage good behavior are permissible in the prison context. What is not permissible is to use otherwise neutral benefits to encourage participation in a religious program.
Unit E, especially when used to conduct a therapeutic community program, became a place where inmates could feel secure, thereby allowing them to focus on their recommended treatment classes. Inmates, many for the first time, were able to invest in their rehabilitation with fellow inmates who offered support and encouragement. Once released, the same inmates were able to experience continued aftercare programs that prison officials consider a key component in lowering recidivism. The Defendants are correct when they point out that the "quality [of an offender program] cannot be coercion." Freedom from Religion Foundation, Inc. v. McCallum, 324 F.3d 880, 884 (7th Cir. 2003). The Seventh Circuit stated:
But quality cannot be coercion. That would amount to saying that a city cannot adopt a school voucher system if the parochial schools in the city are better than the public or private schools. Faith Works, penalized because of secular competitors were unwilling to invest as much in the rehabilitation of offenders, would have an incentive to reduce the quality of its program, while those competitors would have an incentive to reduce the quality of their own programs in order to make Faith Works' "violation" of the establishment clause more perspicuous and encourage it to curtail its program. There would be a race to the bottom.
Id.
The crux of the matter here, however, is not the difference between a quality program compared to other similar, but lesser programs. As the Seventh Circuit cogently stated, "It is a misunderstanding of freedom . . . to suppose that choice is not free when objects between which the chooser must choose are not equally attractive to him." Id. Here, in contrast, the Plaintiffs do not complain of program selections which are merely subjectively unattractive to them, but to an objective lack of real alternative programs sufficiently similar to InnerChange to 930 create true *930 choice. Without real, genuine choice by inmates among similar, comparable alternatives, the state of Iowa impermissibly advances religion within the Dept. of Corrections. As set forth above, the crucial inquiry is "whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they direct that aid." Zelman, 536 U.S. at 669, 122 S.Ct. 2460. (O'Connor, J., concurring). The broad range of available educational options to parents ill Zelman

was critical to the finding that the Ohio program did not violate the Establishment Clause. See Zelman, 536 U.S. at 655, 122 S.Ct. 2460 ("[Students] may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school.").
Here, there is no broad range of choices available to Iowa inmates. The choices need not be identical in nature. In Freedom from Religion Foundation, Inc. v. McCallum (Freedom From Religion II), the district court found that the Wisconsin offenders could meet their rehabilitation treatment requirements by attending any type of postrelease in-patient programs, religious or otherwise.[44]Freedom from Religion II, 214 F.Supp.2d 905, 916 (W.D.Wis.2002). Even though the other non-religious programs were shorter in length (30-90 days compared to a 9-12 month program) and did not provide the same quality of treatment, the non-religious alternatives met the state's post-release requirements for probation, parole, or alternative to revocation. Id. There is no therapeutic community within the Iowa Dept. of Corrections comparable to the InnerChange program at the Newton Facility because no other program offer the full range of recommended treatment modules 0907Thinking for Success, Criminal Thinking, Victim Impact, Substance Abuse and Relapse, Marriage/Family/Parenting, Re-Entry, and Financial Management. The RIVERS and TOW programs closely resemble InnerChange, but they are only for youthful offenders or those with mental health or developmental disabilities, respectively. Even then, the youthful offender RIVERS program is a mere four months in length and is without the substantial aftercare and postrelease benefits contained in the InnerChange program, which Dept. of Corrections officials find so crucial for declining rates of recidivism.
Though limitations for entry into other, possible programs is a factor to be considered, even more important is the limitation imposed on inmates who participate in the InnerChange program, itself, given that it is primarily religious. As set forth above, enrollment in InnerChange is limited to those willing to engage in a spiritual transformation guided by Evangelical Christian counselors and programming. The Defendants' assertion that all inmates are welcome in the program is true in form only. In practice, the intensive religious content of the 931 InnerChange program is a substances *931 disincentive to joining for persons of other faiths, or those professing no faith. Although some inmates of other faiths may enter the program voluntarily, that does not mean the state does not endorse Evangelical Christianity through its choice of program, funding, and in-kind aid. The contractual relationship between the state and InnerChange does not make the treatment program here available, in practice, to a "broad class of individual recipients defined without regard to religion." Zelman, 536 U.S. at 662, 122 S.Ct. 2460.
For the past few years, the contract between the Dept. of Corrections and InnerChange called for a per diem rate of $3.47 to be paid to InnerChange for each inmate enrolled in the program. Even though the Defendants argue that this payment is evidence of a true, private choice by inmates, the only provider to which inmates can direct "their" per diem payment is InnerChange. In Freedom of Religion II, the undisputed facts showed that offenders also did not make their decisions in an unrestricted environment, but were directed by their post-release agents toward pre-selected programs[45] with information that they could refuse to participate in the religious programming because of its content. See 214 F.Supp.2d at 916. What distinguishes the Freedom of Religion cases from the present case is that, when the Wisconsin offenders demurred for religious content, they were immediately informed about other, secular programs available to them and were allowed to participate in the secular programs. Here, there are no alternative, similar programs offered to Iowa inmates who are not interested in the InnerChange religious programming, but who also desire to meet their treatment program requirements in the most timely way, be part of a residential community setting, and avail themselves of an intensive post-release program. Accordingly, the cost-per-inmate system in place in this case is not a true voucher system based on the independent choice of Iowa inmates, but a mere per diem system that does not adequately protect against stateendorsed religion. It is worth noting that the difference between per diem, or per capita, aid and that resulting from a true, private-choice program is important:
In terms of public perception, a government program of direct aid to religious schools based on the number of students attending each school differs meaningfully from the government distributing aid directly to individual students who, in turn, decide to use the aid at the same religious schools. In the former example, if the religious school uses the aid to inculcate religion in

its students, it is reasonable to say that the government has communicated a message of endorsement. Because the religious indoctrination is supported by government assistance, the reasonable observer would naturally perceive the aid program as government support for the advancement of religion.
Mitchell 530 U.S. at 842-43, 120 S.Ct. 2530 (O'Connor, J., concurring). Also, in Mitchell, the plurality's opposition to the pervasively sectarian test did not keep it from distinguishing Nyquist from the program in Mitchell because, in Nyquist, the aid0907as in this case0907was funneled to the religious schools through a per diem arrangement in 932 which there was virtually no chance for aid to flow to non-religious schools. See Mitchell 530 U.S. at 820 n. *932 8, 120 S.Ct. 2530 (deciding, therefore, that the aid was not truly neutral in the first place). In this case, the per diem arrangement only funds InnerChange, with money going directly into InnerChange and Prison Fellowship coffers. Again, the per diem rate is not extended to the aftercare program, which results in the state still paying salaries and other aftercare, post-release expenses on a direct basis. There is no other treatment program to which the inmates can turn to spend "their" $3.47 a day in exchange for roughly the same type of services. Here, the per-diem arrangement between the state and InnerChange does not fall within the constitutional parameters for state-sponsored religious enterprises. Of course, further evidence that the InnerChange program is impermissibly favored by the state of Iowa is that, for a substantial portion of the contractual relationship between the state and InnerChange, there was no attempt to disguise the fact that the funds paid to InnerChange were in the form of direct payments. See Mitchell, 530 U.S. at 843, 120 S.Ct. 2530 (explaining that the distinction between a "a per-capita-aid program and a true private-choice program is important when considering aid that, [as here], consists of direct monetary subsidies.").
Nyquist remains the definitive case to which the Supreme Court turns to characterize improper state funding of a religious institution. The Zelman majority specifically distinguished the funding scheme at work in Nyquist from the Ohio school voucher program there at issue. A review of Zelman's treatment of Nyquist is informative. The program in Nyquist failed on several fronts: 1) the package of benefits in Nyquist went "exclusively to private schools and parents of private school enrollees;" 2) though enacted for secular purposes, the "`function' of the law was `unmistakably to provide desired financial support for nonpublic, sectarian institutions;'" 3) the Nyquist aid was in the form of direct grants to religious schools; 4) the Nyquist aid provided incentives for parents to send their children to religious schools through tax breaks and tuition reimbursements; and, 5) the Nyquist program prohibited the inclusion of any public school or public school parent. Zelman, 536 U.S. at 661, 122 S.Ct. 2460.
As in Nyquist, the benefits of the state funding here went only to InnerChange and those enrolled in its programs and not to any other non-sectarian pre-release treatment program available through the genuine choice of inmates. Second, though the state appropriation was enacted to fight recidivism, state officials in all branches of government were well aware that InnerChange and. Prison Fellowship would undertake that fight through the model of spiritual transformation and believed such a model would be an asset to the Dept. of Corrections. Third, the state funding in this case goes directly to the coffers of InnerChange and Prison Fellowship. Fourth, the state provides incentives to enroll in the program in the form of honor unit living, a secure environment, and excellent post-release care. Finally, as stated above, the initial selection process, including the gerrymandered RFP, precluded consideration of other, non-sectarian providers and all but ensured that the only non-sectarian provider in the most recent selection process would not be chosen. The Court can only conclude that InnerChange's contractual relationship with the state of Iowa, through the Dept. of Corrections, from the viewpoint of " the reasonable observer' who is `aware' of the `history and context' underlying a challenged program," has the primary effect of impermissibly endorsing religion. Zelman, 536 U.S. at 655, 122 S.Ct. 2460 (quoting Good News Club, 533 U.S. at 119, 121 S.Ct. 2093).
933 *933 3. Excessive entanglement.
Whether considered as an effect of the state contract in this case, or under a separate, traditional Lemon I inquiry, the facts and conclusions drawn above leave no room to doubt that the state of Iowa is excessively entangled[46] with religion through the InnerChange program. See Zelman, 536 U.S. at 668, 122 S.Ct. 2460 (affirming that, since Agostini, the entanglement inquiry has been folded into the primary effect inquiry) (O'Connor, concurring); see also Nyquist, 413 U.S. at 794, 93 S.Ct. 2955 (declining to consider whether the challenged aid would yield entanglement since it was already shown to have the impermissible effect of

advancing religion). For all practical purposes, the state has literally established an Evangelical Christian congregation within the walls of one its penal institutions, giving the leaders of that congregation, i.e., InnerChange employees, authority to control the spiritual, emotional, and physical lives of hundreds of Iowa inmates. See Zelman, 536 U.S. at 668-69, 122 S.Ct. 2460 (explaining that "the degree of entanglement has implications for whether a statute [or program] advances or inhibits religion"). There are no adequate safeguards present, nor could there be, to ensure that state funds are not being directly spent to indoctrinate Iowa inmates.
Not all entanglements have the effect of promoting or inhibiting religion. See Agostini, 521 U.S. at 233, 117 S.Ct. 1997 (citing Bowen, 487 U.S. at 615-17, 108 S.Ct. 2562, in which there was no excessive entanglement where the government reviewed a counseling program, its materials, and made periodic visits, and Roemer, 426 U.S. at 764-65, 96 S.Ct. 2337, where annual audits ensured that "grants to religious colleges were not used to teach religion"). As stated above, and what separates this case from cases like Bowen and Roemer, is that the transformational model employed by InnerChange forecloses any possibility that secular and sectarian aspects of the program may be separated. The state, through its direct funding of InnerChange, hopes to cure recidivism through state-sponsored prayer and devotion. While such spiritual and emotional "rewiring" may be possible in the life of an individual and lower the risk of committing other crimes, it cannot be permissible to force taxpayers to fund such an enterprise under the Establishment Clause. "As the Supreme Court has repeatedly held, one of the few absolutes in Establishment Clause jurisprudence is the `prohibit[ion against] government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith.'" DeStefano, 247 F.3d at 416 (quoting Bowen, 487 U.S. at 611, 108 S.Ct. 2562).
934 *934 V. REMEDY
A. Declaratory Relief
"In a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a). "Of course a District Court cannot decline to entertain such an action as a matter of whim or personal disinclination. `A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.'" Public Affairs Assoc., Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962) (quoting Eccles v. Peoples Bank, 333 U.S. 426, 431, 68 S.Ct. 641, 92 L.Ed. 784 (1948)). "The fact that a court can enter a declaratory judgment does not mean that it should." Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987). Notwithstanding Hewitt's admonition, none of the usual dangers attendant to entering a declaratory judgment are present here. See, e.g., Rickover, 369 U.S. at 117, 82 S.Ct. 580 (warning against a premature decision based on an insufficient record, particularly when involving public matters of great import) (Douglas, J., concurring); BASF Corp. v. Symington, 50 F.3d 555, 558-59 (8th Cir.1995) (raising concerns over forum shopping and the seeking of tactical advantage).
Given the full record in this case, the entry of a declaration by the Court seems almost anticlimactic. Nonetheless, the Court does so now. The Court DECLARES that the contractual relationship between the state of Iowa, as managed and directed by the named state Defendants, and InnerChange and Prison Fellowship violates the Plaintiffs' Establishment clause rights as contained in the Federal and Iowa Constitutions by impermissibly funding the InnerChange treatment program at the Newton Facility. The Clerk of Court is ORDERED to enter a final judgment consistent with this declaration.
B. Injunctive Relief
Based on this Court's declaration, the difficult task of providing a suitable injunctive remedy remains. "Every person who, under color of [law] subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ." 42 U.S.C. § 1983. "[E]quitable remedies are a special blend of what is necessary,

what is fair, and what is workable. `Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.'" See Lemon v. Kurtzman, 411 U.S. 192, 201, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973) (Lemon II) (quoting Brown v. Bd. of Educ., 349 U.S. 294, 300, 75 S.Ct. 753, 99 L.Ed. 1083 (1955)).
"Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment." 28 U.S.C. § 2202. "Every order granting an injunction . . . shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to complaint or other document, the act or acts sought to be restrained. . . ." Fed. R.Civ.P. 65(d). Given the full record established in this case, the Court deems the notice and hearing requirements, as set forth in § 2202, met. The parties have fully briefed the Court on the 935 injunctive *935 remedies available, particularly the matter of restitution. The Defendants correctly reminded the Court, should it find a constitutional violation is present, to tailor a remedy as narrowly as possible to protect the rights of the taxpayers and inmates involved.
1. The InnerChange program at the Newton Facility.
There is no set of circumstances under which state funds could support the transformational values-based treatment methods employed in the InnerChange program. The Defendants have urged the Court to consider changing aspects of the program, for instance, by moving its location to another living unit at the Newton Facility or discontinuing the incentives for prisoners to join the program. Also, the parties have suggested ordering the Dept. of Corrections to set up a similar, secular values-based program, or other religion-based programs, as alternatives to the InnerChange program. These options, however, would encourage the Court to engage in micro-management of a state correctional agency0907something that is discouraged except in the most necessary of circumstances. Even then, the state is still in the position of paying for, directly and through in-kind support, religious programming.
Conceivably, a private choice program could be set up by disassociating all state aid to InnerChange through an arrangement that would mean InnerChange and Prison Fellowship would offer an off-site program while incurring all the costs of programming, i.e., building, salaries, supplies, and equipment. This remedy is too broad and is one already rejected by InnerChange and Prison Fellowship in response to the state's initial request for a proposal for non-compensated rehabilitation services. The Plaintiffs have a right to not fund, or be discriminated against by, state-sponsored religion. The remedy to that right is to cease funding, and possibly order restitution, not to order the Defendants to enter a completely new contractual agreement.
Accordingly, the InnerChange treatment program is hereby permanently enjoined from further operation at the Newton Facility, or any other institution within the Iowa Dept. of Corrections, so long as it is supported by government funding. The Director of the Dept. of Corrections shall make arrangements, within a reasonable period of time not to exceed sixty (60) days, for the removal of InnerChange employees from the Newton Facility consistent with inmate safety and other correctional needs.
2. Reinstatement of inmate-plaintiffs' living conditions.
The Plaintiffs seek the reinstatement of Unit E inmates who were removed from Unit E to make room for InnerChange. The placement of inmates is in the sole discretion of the Dept. of Corrections consistent with its own policies and rules. The Plaintiffs concede, as to the inmate-plaintiffs, that this suit is not based on a property or liberty interest in inmate living conditions, but in the inmates' interest in not being discriminated against under the Establishment Clause. That Unit E inmates were moved to make room for the InnerChange program is evidence of the state's preference to endorse the religious message of InnerChange, not a violation, per se, of those inmates' rights based on an expectation of certain living quarters. Upon execution of this judgment, it will be up to officials with the Dept. of Corrections and the Newton Facility to use Unit E consistent with state correctional policy.
3. Cessation of payments and recoupment.
936 Two separate questions regarding funding under the state's contract with InnerChange *936 present themselves here. First, whether InnerChange and Prison Fellowship should be paid under the terms of their current bargain

with the state of Iowa.[47] The second, and more difficult question, is whether recoupment is a proper remedy. The Plaintiffs seek recoupment of all state funds used to pay InnerChange and Prison Fellowship under the terms of their past and present agreements. Specifically, the Plaintiffs seek the return of all Tobacco Trust funds and the return of monies taken from the Telephone Fund, by way of a pro rata refund, to each inmate account equal to that taken to fund the InnerChange program at the Newton Facility.
The first issue, bargain expectations of the parties, was the focus of the remedial analysis in Lemon II. The appellants, who prevailed in Lemon I, made no claim that funds already paid out under the invalid Pennsylvania statute should be returned. Lemon II, 411 U.S. at 194, 93 S.Ct. 1463. Instead, the appellants appealed the district court's decision not to enjoin the payment of approximately $24 million yet to be dispersed under service contracts with nonpublic sectarian schools for services[48] already rendered. Id. In Lemon I, the Supreme Court decided that the state scrutiny required to ensure the aid was not used in connection with "any subject matter expressing religious teaching, or the morals or forms of worship of any sect" would foster excessive entanglement. 403 U.S. at 609-10, 91 S.Ct. 2105. The first Lemon decision did not, therefore, reach the primary effects question. The LemonII Court decided it would be unfair to enjoin the payment under the service contracts for several reasons. First, and foremost, the danger of excessive entanglement, the "fulcrum of Lemon I," had passed and, therefore, the distribution of funds would "not substantially undermine the constitutional interests at stake in Lemon I." Lemon II, 411 U.S. at 201, 93 S.Ct. 1463. The danger had passed because there was no evidence that the state agent charged with oversight did not do what he was charged to do, which was to make certain the state aid was not used in connection with religious instruction. Id. at 202, 93 S.Ct. 1463. Further, the risk of a post-audit process implicating constitutional issues was minimal. Id. A second major consideration was the reliance each of the recipient schools had on their bargain with the state of Pennsylvania. "It is well established that reliance interests weigh heavily in the shaping of an appropriate equitable remedy." Id. at 203, 93 S.Ct. 1463. The denial of payment would have created a substantial financial burden on the recipient schools. Id. at 204, 93 S.Ct. 1463. The Lemon II Court found it significant that the appellants withdrew their request for a preliminary injunction early in the litigation based on the mutual understanding of the "practical realities of the situation." Id. at 205, 93 S.Ct. 1463. Equity did not demand the schools show an actual amount of their detriment based on their expectation of reimbursement. Id. In response to the appellants' argument that the schools should 937 not have relied on the money in such an uncertain *937 area of the law, the Court stated that the inherent function of legislative bodies is to act. Otherwise, legislatures and those who depend on their decisions would be paralyzed while they waited for some judicial determination that their agreement would not be "unraveled." Id. at 208, 93 S.Ct. 1463. Accordingly, the Court decided that the schools had not "acted in bad faith or that they relied on a plainly unlawful statute." Id. at 207, 93 S.Ct. 1463.
In Cathedral Academy, the district court went the other way and decided to enjoin any payments yet to be made to New York schools for providing recording keeping and testing services already done. 434 U.S. at 126-27, 98 S.Ct. 340. The district court held the state statute authorizing the agreements violated the Establishment Clause, a decision affirmed in Levitt v. Committee for Pub. Educ. & Religious Liberty, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973). The New York legislature responded to the district court's decision by enacting its own remedy by authoring a cause of action by which schools could petition a New York Court of Claims to decide their reliance damages. Cathedral Acad., 434 U.S. at 127, 98 S.Ct. 340. The Supreme Court struck down the New York remedial statute, stating that to do otherwise "would expand the reasoning of Lemon II to hold that a state legislature may effectively modify a federal court's injunction whenever a balancing of constitutional equities might conceivably have justified the court's granting similar relief in the first place." Id. at 130, 98 S.Ct. 340. Additionally, the statutory remedy would, literally, reenact the harm by authorizing "aid that [would] be devoted to secular functions . . . not identifiable and separate from aid to sectarian activities.'" See id. at 131, 98 S.Ct. 340 (quoting Levitt, 413 U.S. at 480, 93 S.Ct. 2814). "This was so because there was no assurance that the lumpsum payments reflected actual expenditures for mandated services, and because there was an impermissible risk of religious indoctrination inherent in some of the required services themselves." Cathedral Acad., 434 U.S. at 131, 98 S.Ct. 340. The same type of constitutional violation active in Cathedral Academy is active here, and is what distinguishes the present case from Lemon II0907at least on the question of expectations under the current contract between the state and InnerChange for services already provided. In Lemon II, reliance payments could be made because the constitutional risk engendered by the process of dispersing the aid0907entanglement0907was gone, while here, as in Cathedral Academy, the primary effect of the aid, itself, gives rise to the constitutional

defect. Further, the practical outcome of the New York statutory remedy in Cathedral Academy would be that state courts would decide which school activities under the agreement were sufficiently non-sectarian to allow reliance on state aid, and which would result in the courts' excessive entanglement in religious affairs. Id. at 133, 98 S.Ct. 340. Another key distinction between the New York schools in Cathedral Academy and the Pennsylvania schools in Lemon II, was that the New York nonpublic sectarian schools were required, by law, to provide the services they rendered. The Pennsylvania nonpublic sectarian schools, on the other hand, provided services for which they bargained, thereby creating a stronger case in equity for actual contractual reliance. Id. at 133-34, 98 S.Ct. 340.
The factual circumstances and differences contained in Cathedral Academy and Lemon II are helpful here in deciding whether the state of Iowa should pay for additional work provided by InnerChange. As mentioned, the constitutional defects in the state contract with InnerChange are active in both the primary effect of the state aid 938 and the state's excessive entanglement with the religious nature of the *938 InnerChange program. The funding of the program, itself, endorses the InnerChange religious message, whether that money is paid for future services or for services already rendered under the current contract.
The Lemon II Court, furthermore, found significant that the schools who relied on their agreement with the state would suffer not mere legal detriment, but financial hardship without the program reimbursement. See 411 U.S. at 204, 93 S.Ct. 1463 ("The District Court found no dispute `that to deny the church-related schools any reimbursement for their services rendered would impose on them a substantial burden which would be difficult for them to meet.'"). While nonpublic and public schools have many things in common, there is no question that the most common characteristic is meeting the annual budgetary constraints faced by any academic institution. Here, however, InnerChange and Prison Fellowship, in contrast to elementary and secondary schools, have sufficient funds to weather an adverse judgment. Prison Fellowship receives annual revenues of over $50 million; for instance, in 2004, Prison Fellowship received over $55 million in revenue. Since InnerChange does not have its own independent fund-raising department, it receives private money through Prison Fellowship, which raises money specifically for the InnerChange program.
Accordingly, under the factors set out in Lemon II and Cathedral Academy, equity requires no further payments be made to InnerChange by the state of Iowa. The Director of the Dept. of Corrections shall order any and all persons associated with the payment of funds under the current contract with InnerChange to cease all payments totaling $1,529,182.70 to Inner-payments to InnerChange or Prison Fellowship as of the date of this Order, including those expenses for services already provided in the preceding quarter.
The question of recoupment is a more difficult matter, but a question also guided by the equitable principles set forth in Lemon II and Cathedral Academy.[49] "[R]estitution is among the remedies that a federal court can order for a violation of federal law." Laskowski v. Spellings, 443 F.3d 930, 935 (7th Cir.2006) (citing Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 290-91, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960); Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 68, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992)); Porter v. Warner Holding Co., 328 U.S. 395, 398-99, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946); United States v. Lane Labs-USA Inc., 427 F.3d 219, 225 (3d Cir.2005). "[F]or restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant's possession." Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 214, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). Nonetheless, "there is no per se rule that the recipient of illegal funds who has spent them cannot be forced to repay them, either in establishment clause cases or in any other class of cases." Laskowski, 443 F.3d at 936 (citing Messersmith v. G.T. Murray & Co., 667 P.2d 655, 657-58 (Wyo. 1983)); Equilease Corp. v. Hentz, 634 F.2d 850, 854 (5th Cir.1981).
The Defendants cite Lemon II to support their argument that when a religious institution has reasonably relied, to 939 its detriment, on its belief that government aid is legal, restitution of those funds is inequitable. *939 See Lemon
II, 411 U.S. at 209, 93 S.Ct. 1463 ("In short the propriety, of relief . . . applying familiar equitable principles, must be measured against the totality of the circumstances and in light of the general principle that, absent contrary directions, state officials and those with whom they deal are entitled to rely on a presumptively valid state statute, enacted in good faith, and by no means plainly unlawful."). InnerChange and Prison Fellowship give several reasons why reliance on their contract is reasonable and entered into in good faith. The parties agree, correctly,

that Establishment Clause jurisprudence has always been complex, and never more so than in the last decade of Supreme Court decisions. See id. at 206, 93 S.Ct. 1463 (quoting Lemon I: "[W]e can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law," 403 U.S. at 612, 91 S.Ct. 2105). The Defendants also remind the Court that, though Establishment Clause cases are often decided at the summary judgment stage, this case has required a full trial in order to sort out the complex material facts present. The Defendants also assert that the InnerChange program has been developed over the years in concert with a good faith effort to comport with developing law. Despite these efforts, the law regarding faith-based programming in prisons was "not [so] clearly foreshadowed," as to show the Defendants a clear course of action. Lemon II, 411 U.S. at 206, 93 S.Ct. 1463. InnerChange and Prison Fellowship can also take refuge in the Cathedral Academy decision that parties to a services contract may justifiably rely more on that agreement than an institution or party forced to provide services by law.
Weighing in favor of recoupment, nevertheless, are also several compelling arguments. First, is the severe nature of the violation. The violations in Lemon II and Cathedral Academy appear quaint next to the intentional choice by the state of Iowa and InnerChange to inculcate prisoners as a treatment for recidivist behavior.[50] The Defendants' reliance on the esoteric nature of Establishment Clause law can carry them only so far. The level of religious indoctrination supported by state funds and other state support in this case, in comparison to other programs treated in the case law, as set forth above, is extraordinary. The Defendants' claims that a state's interest in recidivism should override concerns about violating taxpayer and inmate Establishment Clause rights is not supported by the law. Granted, the Zelman Court gave weight to the challenges faced by state officials who were confronted with the inequities and poor educational conditions in disabled school systems. The Zelman Court's analysis, however, does not indicate that dispositive status should be given to a state's legitimate responsibilities without safeguards, like the presence of genuine, private choice to protect the religious liberty of its citizens.
Second, the primary effect of the contract between the state and InnerChange was on-going. As stated above, the violation is not one of mere process, as in Lemon, where the Court was reasonably assured that no state funding was connected to supporting religion. Rather, the primary effect of the state funding here is years of state endorsement of the religious message taught by InnerChange. The holding in Cathedral Academy indicates that 940 a violation in which sectarian and *940 nonsectarian spending cannot be actually separated invalidates a nonpublic party's reliance on those funds.
Third, the financial burden to InnerChange and Prison Fellowship will not be insignificant, but it will not be unmanageable in light of their annual revenue, as set forth above. As stipulated by the parties, the Dept. of Corrections has made direct payments of $1,529,182.70 to InnerChange. $843,150 came from the Telephone Fund and $686,032.70 from the Tobacco Fund. By the end of this year, the total will be just over $1.8 million. The cost of running all the InnerChange programs across the country is approximately $4 million. Irregardless of constitutional issues; from a purely financial perspective, Norman Cox confirmed InnerChange could likely fund its own program without state funds in the event states could not afford the program. InnerChange is not statefunded, for example, in Missouri, Arkansas, or Texas, although there was no evidence presented regarding inkind support in those states. That said, an order of recoupment is also intended to convey that the constitutional violation here is not insignificant, but a real deprivation of the Plaintiffs' religious liberties. As such, the constitutional violation should not to be countenanced by the Court, just as it should not have been permitted by the state officials, in all branches of state government, responsible for protecting Iowa taxpayers and inmates.
The Defendants are correct to point out that the factual record in this case is substantial, and that the material facts to be determined were sufficiently complex to warrant a trial in order to weigh the evidence. This fact does not, however, show the Defendants' reliance on the contract was reasonable given the agreement's uncertain character. While the Court needed a trial to become, hopefully, "the reasonable observer" who must be "familiar with the full history and context" of the challenged program, there were parties who already had that vantage point0907the Defendants. Zelman, 536 U.S. at 655, 122 S.Ct. 2460. In a real sense, the Court now knows what Defendants knew before the Plaintiffs took this action0907that state funds were used intentionally to indoctrinate Iowa inmates, by a non-profit religious service provider preferred by the state in its selection process, into a form of the Christian religion in the belief that the indoctrination, combined with the communal rehabilitation model, would be of some help in their rehabilitation. The state and private Defendants also retained experienced,

knowledgeable legal counsel that should have been aware of the constitutional risks associated with state funding of InnerChange. The Defendants, here, are not poorly funded nonpublic schools, but well-financed and sophisticated entities who know every contour of First Amendment law. In addition, evidence shows that the California Department of Corrections provided InnerChange and Prison Fellowship a full legal memorandum explaining why that agency could not, in good conscience, support state funding of InnerChange in its prisons given Establishment Clause jurisprudence. See Pls.' Ex. 301. Additionally, legal counsel for the Defendants had to be aware of the published Texas Supreme Court case that decided a similar in-prison program violated federal and Texas constitutional law. Lara, 52 S.W.3d 171. InnerChange and Prison Fellowship provide independent legal analysis to bolster their good faith argument for state funding. See Pls.' Ex. 302 and 303. That analysis, however, rests on the theory that state interests in reducing criminal offenses so outweigh any indoctrination risks to inmates that programs based in spiritual transformation are permissible. That theory, however, has never been the law under the Establishment Clause.
941 *941 The type of constitutional violation here, the substantial nature of that violation, the degree of knowledge of the Defendants about the risk associated with the program, and the financial impact of the judgment on the Defendants, taken together, outweigh the reliance InnerChange and Prison Fellowship had on the contract in this case.
Accordingly, InnerChange and Prison Fellowship are ordered to repay the Dept. of Corrections the full amount of state funds paid to InnerChange since the inception of its contractual relationship with the Dept. of Corrections in 1999. Since the program is on-going, that amount shall be no less than $1,529,182.70.[51] InnerChange and Prison Fellowship will not be required to pay the expenses incurred by the Dept. of Corrections for in-kind support, though quite substantial, in the form of buildings, utilities, transportation, etc. The Director of the Dept. of Corrections is further ordered to refund, in pro rata fashion, in an amount no less than $843,150, to the individual Telephone Fund accounts from which it was taken. The remainder of the recoupment, in an amount no less than $686,032.70, shall be returned to the Tobacco Trust.
C. Stay
The parties to the action have all but promised the Court that an appeal will be forthcoming, regardless of the outcome of this trial in the district court level. In the likely event that either party appeals the judgment in this matter, and to avoid unnecessary litigation, the Court further ORDERS that the injunctive and other equitable relief contained herein be SUSPENDED pending the appeal. Fed. R.Civ.P. 62(c). Notwithstanding this stay, InnerChange and Prison Fellowship shall post a supersedeas bond for the amount of $1,529,182.70 with the Clerk of Court.
VI. CONCLUSION
The Clerk of Court is ordered to file a judgment consistent with this memorandum and order. Also consistent with this memorandum and order, the parties are given leave to file motions and supporting documents regarding attorneys' fees and costs.
IT IS SO ORDERED.
[1] The Plaintiffs also bring a state claim under a section of the Iowa Constitution that, in relevant part, mirrors the language found in the Establishment Clause of the Federal Constitution. Iowa Const. art. 1, § 3, The Plaintiffs' other state claim arises under Article 1, section 4, of the Iowa Constitution, which states: "No religious test shall be required as a qualification to any office, or public trust, and no person shall be deprived of any of his rights, privileges, or capacities, or disqualified from the performance of any of his public or private duties . . . in consequence of his opinions on the subject of religion." Compare U.S. Const. art. VI, § 1, cl. 3.
With no indication that Iowa state courts would treat the establishment clauses in the state and federal constitutions differently, the remaining state establishment of religion claim will be analyzed concomitantly under

federal law. See, e.g., Kliebenstein v. Iowa Conference of United Methodist Church, 663 N.W.2d 404, 406 (Iowa 2003) (analyzing the clauses simultaneously); Rudd v. Ray, 248 N.W.2d 125, 130 (Iowa 1976) (recognizing that the disestablishment provisions included in all the state constitutions "[have] a common original and parallel history with the First Amendment of the United States Constitution").
The Court granted summary judgment to Defendants Prison Fellowship and Inner-Change on the Plaintiffs' state employment discrimination claim for failure to show actual injury and, in the alternative, failure to comply with state administrative filing requirements. See Mem. and Order on Cross Mot. for Summ. J. at 25-26 (Clerk's No. 212).
[2] The Court notes the length of this memorandum and order. In light of the lengthy trial and large quantity of evidence in this case, the Court finds a substantial order necessary in order to give thorough treatment to the complex factual and legal issues.
[3] The named state Defendants, sued in their official capacities, fall under the auspices of the Civil Rights Act. The parties did not actively litigate, at any stage of the case, whether the Plaintiffs established that, under § 1983, the challenged actions of the private corporate Defendants, InnerChange and Prison Fellowship, were committed under the color of law. Nevertheless, based on the factual findings here, the Court concludes that Inner-Change and Prison Fellowship, though private parties, are persons acting under the color of law for the purposes of the Civil Rights Act of 1871. 28 U.S.C. § 1343(a); 42 U.S.C. § 1983. "A corporation acting under color of state law will only be held liable under § 1983 for its own unconstitutional policies." See Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and setting forth the test for defining a "policy, custom, or action by those who represent official policy which inflicts an injury actionable under § 1983").
"`Private persons, jointly engaged with state officials in the prohibited action, are acting `under color' of law for purposes of the statute. To act `under the color' of law does not require the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.'" Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 941, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). The contractual agreement between InnerChange, Prison Fellowship, and the Iowa Dept. of Corrections, and the executing of its terms is sufficient to show that the Defendants engaged in a joint action for the purposes of § 1983. Additionally, the rehabilitative treatment provided by Inner-Change is a function traditionally and exclusively reserved to the state, thereby qualifying InnerChange's rehabilitation treatment as a state action under the public function doctrine. See West v. Atkins, 487 U.S. 42, 54-55, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (holding that a physician, under contract to provide medical treatment to prison inmates, is "a person who may fairly be said to be a state actor" because of the unique relationship between the prison, the inmates, and the physician). Here, the InnerChange employees in 0907 addition to teaching in the treatment program0907also provide counseling and security services within the confines of the Newton Facility, creating a relationship, from the perspective of the inmates, in which the differences between private and state actions by InnerChange and Prison Fellowship are nonexistent.
[4] Jefferson's words reflect the common theological assumption at the time that a divine hand set the course of human events. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 26, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (retelling the story in which George Washington, at his first inauguration, opened the Bible to Psalm 121:1: "I raise my eyes toward the hills. Whence shall my help come."). The presence of an underlying "civic" religious belief is recognized as a part of our nation's heritage. See Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (seeing no constitutional violation with a 200-year practice of legislative prayer, quoting Justice Douglas: "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952)).
The recognition of a broadly defined civic religious belief did not take shape in a legal vacuum, but is the work of our Country's dynamic cultural evolution, driven by welcoming divergent peoples to our shores over time. For an excellent analysis of the political history of the Establishment Clause, see John C. Jeffries & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L.Rev. 279 (2001) (locating federal establishment clause jurisprudence in the context of shifting political, religious, and racial coalitions). Given the place accorded to religion in our constitutional jurisprudence, therefore, any judicial determination regarding the Establishment

Clause is never a choice between secularism and faith, but can only be a decision based on the shape of the constitutional protections enunciated in the most recent, applicable, authorities available.
[5] On June 6, 1788, at the Virginia State Convention, James Madison famously stated:
I confess to you, sir, were uniformity of religion to be introduced by this system, it would in my opinion, be ineligible; but I have no reason to conclude that uniformity of government will produce that of religion. This subject is, for the honor of America, perfectly free and unshackled. The government has no jurisdiction over it: the least reflection will convince us there is no danger to be feared on this ground.
The Complete Bill of Rights 69.
[6] Because the Court found, in its November 2005 Order (Clerk's No. 212), that Plaintiffs met the standing requirements as taxpayers, inmates, or as an organization, it did not decide standing on two other grounds propounded by the Plaintiffs0907as contributors to the Telephone Fund or as tobacco users. Mem. and Order on Cross Mot. for Summ. J. at 5 n. 5.
[7] In the Iowa Dept. of Corrections, inmate phone privileges are paid through individual inmate phone accounts. Inmates and those interested in them0907family and friends0907deposit money into the individual accounts. The Dept. of Corrections is authorized by statute to establish and maintain the Telephone Fund, and directed to use the fund "for the benefit of inmates." See Iowa Code § 904.580A (authorizing, as well, the director of the Dept. of Corrections to adopt rules providing for the disbursement of moneys from the fund). For each inmate telephone use, funds are withdrawn from these individual accounts to pay for the telephone call. The amount charged for each telephone call by the Dept. of Corrections is more than the actual cost of the telephone usage. The commission is placed in the Telephone Fund and deposited into separate Dept. of Corrections institutional accounts based on the report of the telephone vendor. Iowa Admin. Code r. 201-20.20(2).
[8] Throughout this Memorandum and Order, the Court will describe Prison Fellowship and InnerChange's theological position, as reflected in its public statements, curriculum, and in practice at the Newton Facility, as Evangelical Christian rather than simply Christian or Non-Denominational Christian. Absolutely no animus is intended by this nomenclature. As will be evident from the facts set forth, the religious nature of the InnerChange program is not only distinct from non-Christian religions (Hinduism, Buddhism, Islam, Native American practices, and Judaism, for example) as well as atheist or agnostic practices, it is also quite distinct from other selfdescribed Christian faiths, such as Roman Catholicism, Mormonism, and Greek Orthodoxy. Evidence shows that the Evangelical Christian message is also distinct from the beliefs held by self-described Protestant Christian denominations such as Lutheran, United Methodist, Episcopalian, and Presbyterian, again, to name only a few.
This brew of religious and non-religious groups makes up the American culture and it is the genius of the First Amendment that allows each person to enjoy the freedom to express themselves religiously without fear that another religious group will predominate with the state's seal of approval. See Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) ("The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another."); School Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 319, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) ("What our Constitution indispensably protects is the freedom of each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker, to believe or disbelieve, to worship or not worship, to pray or keep silent, according to his own conscience, uncoerced and unrestrained by government.") (Stewart, J., dissenting); Teterud v. Burns, 522 F.2d 357, 360 (8th Cir.1975) ("It is not the province of government officials or court to determine religious orthodoxy.").
[9] Defendants maintain that the Court should not rely on Dr. Sullivan's testimony because she does meet the Daubert standards and, in considering her testimony, the Court improperly assesses value to the beliefs held by InnerChange and Prison Fellowship, as well as their employees and volunteers. The Court disagrees. First, Dr. Sullivan's academic credentials as an expert in the fields of comparative religion and the history of Christianity are impeccable and, second, her testimony is considered by the Court only to situate, objectively, InnerChange and Prison Fellowship within the well-accepted context of religious tradition and practice as they exist now.
The Court, as stated above, makes absolutely no value judgment about the beliefs held by InnerChange, Prison Fellowship or their volunteers and employees. "The law knows no heresy, and is committed to the support of no

dogma, the establishment of no sect." Watson v. Jones, 80 U.S. (13 Wall.) 679, 728, 20 L.Ed. 666 (1871); see also Hernandez v. C.I.R., 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) ("It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds."); United States v. Lee 455 U.S. 252, 263 n. 2, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (Stevens, J., concurring) ("The risk that governmental approval, [legislature or the courts], of some and disapproval of others will be perceived as favoring one religion over another is an important risk the Establishment Clause was designed to preclude.").
The theological views and practices of InnerChange and Prison Fellowship, however, are material to First Amendment analysis. The state of Iowa's knowledge of InnerChange and Prison Fellowship's theological positions and practices, and the implementation of the InnerChange program at the Newton Facility 0907particularly InnerChange's claim to be open to persons of any religious persuasion0907all go to show whether the State impermissibly sanctioned the evangelization of the inmates in its care into a particular form of the Christian faith. The issue presented here is not the merits of InnerChange and Prison Fellowship's religious beliefs, but the constitutionality of their actions, along with that of the Dept. of Corrections. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 839, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ("If there is to be assurance that the Establishment Clause retains its force in guarding against those governmental actions it was intended to prohibit, we must in each case inquire first into the purpose and object of the governmental action in question and then into the practical details of the program's operation.") (emphasis added). This is especially true if evidence exists to show that one religious group is being favored over others. See Id. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 714-15, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (O'Connor, J., concurring) ("[T]he Establishment Clause prohibits government from abandoning secular purposes . . . to favor the adherents of any sect or religious organization.") (quoting Gillette v. United States, 401 U.S. 437, 450, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971)).
The Court has no interest, whatsoever, in engaging in comparative theology in order to find an acceptable version of "values-based" programming "ecumenical enough to pass Establishment Clause muster," agreeing that one could hardly "imagine a subject less amenable to the competence of the federal judiciary." Lee v. Weisman, 505 U.S. 577, 616, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (Souter, J., concurring). What Dr. Sullivan's insights do help with is understanding, in what sense, those who do not share InnerChange's theological position may face discrimination. One author sums up well the Court's position:
[N]either the institutional competence of the courts nor the separationist principle embodied in the Establishment Clause bars judicial resolution of positive religious questions, such as assessments of the content of religious doctrine, or determinations of the centrality or importance of a religious practice within the context of a religion. In other words, on religious matters, courts may not tell people what they should do or believe, but they may determine, in the sense of making factual findings, what beliefs people hold and what practices they engage in.
Jared A. Goldstein, Is There A "Religious Question" Doctrine? Judicial Authority To Examine Religious Practices and Beliefs, Cath. U.L.Rev. 497, 501 (2005).
[10] Evangelical Christians, of course, do not have a monopoly on the word "evangelical." In some sense, all selfdescribed Christian groups would consider themselves evangelical, in that they attempt to share the story written in the first four books of the New Testament and attributed to the evangelists 0907 Matthew, Mark, Luke, and John.
[11] In one, sense, the InnerChange program can be considered "non-denominational" in nature in that it does not consider itself a formal denomination or church. Given the major doctrinal differences between it and other Christian groups, however, it cannot consider itself "non-denominational" in the sense that its program or belief statements would be acceptable to inmates and employees who consider themselves Christian but not Evangelical Christian. The Court relies on Dr. Sullivan's testimony for this distinction as it does for the characterization of the faith groups and beliefs discussed in the Memorandum and Order as a whole.
[12] The term "values-based" is not, the Court finds, simply a pretextual term in all cases for a "religion-based" program. The teaching of moral values, and creating a comprehensive rehabilitation program intentionally focused on moral values and character development, need not imply indoctrination into a religious faith. As the free speech viewpoint discrimination cases bear out, moral education and character development can be offered

from a religious, as well as a non-religious stand-point. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 111-12, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (refusing to accept the proposition that "any time religious instruction and prayer are used to discuss morals and character, the discussion is simply not a `pure' discussion of those issues"); see also Trial Tr. at 2139-42 (discussing the benefits of the community resocialization model, thought by many experts in the correctional field to be the best way to address attributes associated with criminal behavior).
The Free Speech inquiry, of course, is separate from the Establishment Clause inquiry. See Good News Club, 533 U.S. at 113, 121 S.Ct. 2093 (holding Establishment Clause was not implicated where there was "no realistic danger that the community would think that the District was endorsing religion or any particular creed"). The issue presented here is not whether a "standard moral code," as the Defendants describe it, can be taught from different religious or non-religious vantage points, but whether the moral code presented by InnerChange, as financed by the state at the Newton Facility, can be separated from the religious vehicle in which it is presented.
[13] The Defendants argue that the transformational model outlined here could be used by any faith group0907Muslim, Jewish, Hindu, Buddhist, Native American, etc. to 0907 good use because the civic virtues contained therein are universal. It just so happens, the Defendants maintain, that InnerChange is Evangelical Christian. It follows, the Defendants state, that InnerChange should not be slighted for being the only real option in the marketplace for values-based rehabilitation providers in prisons.
[14] Charles "Chuck" Colson is the well-known former special counsel to President Richard M. Nixon and founder, with others, of Prison Fellowship in 1976.
[15] With each exhibit reference the Court will attempt to only refer to the page, as counted from the beginning of the exhibit, as a pinpoint citation for ease of use, avoiding the multiple Bates or other types of organization stamping numbers that often appear on the same exhibit page. In a few instances, the Bates reference will be used out of necessity.
[16] The Christian-based Brazil rehabilitation program, started by Brazilian businessman Mario Ottoboni, is considered by Prison Fellowship to be the forerunner of the InnerChange program in the United States. A U.S. version of InnerChange began in the Jester II prison in Houston, Texas, in 1997.
[17] Jerry Wilger was National Director of InnerChange from October 1997 to March 1, 2004. Before becoming the National Director, Wilger served as a Prison Fellowship volunteer and board member. Wilger oversaw the development and design of the InnerChange program in four states.
[18] Due to a state-wide prison population increase, the Dept. of Corrections was forced to add extra bunks to cells designed to hold two persons at the relatively new Newton Facility, making most general population living unit cells in the Newton Facility three-person cells.
[19] An RFP is part of the process any state agency must undergo to advertise publically and request services that a state agency may require from a private vendor. Though the services are requested by a specific agency, the Iowa Department of General Services ("General Services") manages the selection of the vendor and eventual procurement of services. The RFP, then, is a standardized advertisement for services designed to ensure fair competition that is made through trade publications, newspapers, and any other avenue that would reasonably reach potential private bidders. Even though an RFP originates in a state department, the RFP is actually put out by General Services. An agency that has gained charter status has the authority, however, to govern its own RFP process. The Dept. of Corrections recently gained charter status and, thus, analyzed and processed by itself the proposals submitted by InnerChange and Emerald in the past year.
Sometimes, General Services approves a sole source bid in emergency situations. A sole source bid bypasses the RFP process. The sole source bidding process was not involved here.
[20] The phrase "up to" takes into account the inexact nature of non-sectarian expenses, e.g., copies and phone bills. The contract amount is the money allocated to be spent on the InnerChange program by the Iowa legislature.

[21] The rules promulgated by the Dept. of Corrections state that, based upon written requests by each warden or superintendent of an institution:
The director shall advance to the corrections board for approval only projects that benefit offenders. Expenditures may include, but are not limited to, projects that provide educational, vocational or recreational services or projects, or work or treatment programs for offenders. Expenditures may also be used to initiate new programs, services, or projects. Institutions shall give spending priority to programs, services, and projects that promote the health and welfare of offenders.
Iowa Admin. Code r. 201-20.20(5).
[22] The national administrative department of InnerChange supports the entire InnerChange program delivered in several states, including its sectarian components. The national administrative department performs budgeting duties, negotiates contracts with the state, works on security issues requiring resolution with the state, reviews InnerChange curriculum and policies, and prepares bills to the state. In some instances, these costs incurred by the national administrative department of InnerChange were billed to the state of Iowa.
[23] Money comes to the Healthy Iowans Tobacco Trust fund, created in the office of the Iowa State Treasurer, from the master tobacco settlement entered into by most states with tobacco manufacturers. Iowa law provides:
Moneys deposited in the healthy Iowans tobacco trust shall be used only in accordance with appropriations from the healthy Iowans tobacco trust for purposes related to health care, substance abuse treatment and enforcement, tobacco use prevention and control, and other purposes related to the needs of children, adults, and families in the state. . . .
Moneys in the healthy Iowans tobacco trust shall be considered part of the general fund of the state for cash flow purposes only, provided any moneys used for cash flow purposes are returned to the trust by the close of each fiscal year. Iowa Code § 12.65 (2005).
[24] After the Dept. of Corrections made the February 2003, $172,591 payment related to InnerChange's expansion to the Newton Correctional Release Center ("Newton Release Center"), InnerChange periodically sent invoices to the Dept. of Corrections, which by July 29, 2005, totaled $172,000, for expenses that InnerChange coded as non-sectarian that were incurred for InnerChange's program at the Newton Release Center in 2003, 2004, and the first half of 2005. These invoices were for the funds that had already been paid, and InnerChange did not ask for or receive additional payments in connection with these invoices.
[25] These Newton Facility risk assessment levels are different than an inmate's overall custody score, which is applied across the Dept. of Corrections. A custody score is a score an inmate receives based on the type of crime committed before incarceration, and on his behavior. The custody score is one criterion considered by the Dept. of Corrections when deciding whether to place an inmate in a maximum, medium, or minimum security prison. A custody score of 0-5 signifies that an inmate may be appropriate for minimum security housing. A score of 6-10 usually results in medium security housing, and a score of 11 or above usually indicates an inmate should be placed in a maximum security setting. What can become confusing is that, when discussing custody score, the risk associated. with the inmate is directly proportionate to his custody score, while the internal Newton Facility risk assessment level is based on an inverse scale0907the higher the Level, the lower the considered risk. Accordingly, and in general terms only, a person may have a custody score of 7, but be considered a Newton Facility Level 50907that is, he may be placed in a medium security facility but be considered one of the safest types of inmates on the Newton Facility campus. Again, this is a generalized statement. Placement at the various Dept. of Corrections institutions is based on a multitude of factors including, but not limited to, the inmate's preference, proximity to family, and availability of treatment programs.
In general, inmates cannot be placed in the Newton Facility if they have a custody score greater than 10, unless a special waiver or exception is made based on exceptional custody considerations. Likewise, in general, inmates cannot be placed in the Newton Release Center if they have a custody score greater than 5, unless a special waiver or exception is made based on exceptional custody considerations.

At trial, the Court was struck by the high level of professionalism displayed by Dept. of Corrections personnel, who work extremely hard under difficult budgetary constraints to provide not just a punitive environment, but a truly rehabilitative atmosphere conducive to lowering recidivism and rehabilitating the inmates in their care.
[26] Each potential InnerChange candidate is handed a consent form explaining the volun tary nature of the program. In order to enter InnerChange, an inmate must sign the consent form, called the Participation & Release of Information Form, that states, in relevant part:
I, the above mentioned member of the InnerChange Freedom Initiative agree to voluntarily participate in the Values Bases Pre-Release Program (the "Program") conduct [sic] by Prison Fellowship Ministries at the Newton, Iowa [sic].
I understand the following:
0905 That my decision to participate in the Program is of my own free will;
0905 That my decision to participate in the Program will not affect my consideration for parole;
0905 That my good time will not be increased because I participated in the Program;
0905 That the Program contains religious content and is based upon Christian values and principles;
0905 That I do not have to be of the Christian faith to participate in the Program;
0905 That I will be assigned inmate work as well as treatment;
0905 That my activities and schedule will be different from those to which I have been accustomed . . .
0905 That I can discontinue my participation in the Program. I also understand that Prison Fellowship Ministries has the right to dismiss me from the Program if it so chooses.
0905 That I will not be penalized in any way if I withdraw from the Program.
The form then provides spaces for the signed and printed name of the inmate, his Dept. of Corrections number, a witness signature, and the date. See, e.g., Defs.' Ex. Gilbert 1.
[27] Inmates in the following Iowa prisons are eligible to enroll in InnerChange: Fort Dodge Correctional Facility ("Ft. Dodge") in Fort Dodge, Iowa; the Mt. Pleasant Correctional Facility ("Mt. Pleasant") in Mt. Pleasant, Iowa; the Clarinda Correctional Facility ("Clarinda") in Clarinda, Iowa; the North Central Correctional Facility ("NCCF") in Rockwell City, Iowa; the Iowa State Penitentiary ("ISP"), the John Bennett Correctional Facility ("John Bennett"), Farm 1 and Farm 3 in Fort Madison, Iowa; the Iowa Medical and Classification Center ("IMCC") in Oakdale, Iowa; the Anamosa State Penitentiary ("Anamosa") in Anamosa, Iowa; Luster Heights in Harpers Ferry, Iowa; and the Newton Facility and Newton Release Center in Newton, Iowa.
[28] Custody scores are one factor used to determine whether an inmate is allowed to participate in a treatment program. Corrections personnel, in their discretion, may allow an inmate with a high custody score to participate in a program simply to give that inmate a chance to succeed. This appeared to be the case for several inmates allowed into InnerChange.
[29] The InnerChange claim that it is inclusive of, at least, all other Christian faiths has not always been so clearly defined. In an earlier Field Guide edition, a "What is IFI Like" section, written from the first-person perspective of a fictionalized InnerChange inmate, discusses the requirement that every InnerChange inmate must attend Sunday morning worship services. Yet, the author assures those of a "different religion . . . like Catholic and Muslim" that they may be allowed to attend separate worship experiences. Pls.' Ex. 74 at 18 (emphasis added).
[30] The Introduction Workbook, used at the other Dept. of Corrections institutions during the introductory period, is another example of the transformational theory at work through the mixing of the six civil values and Evangelical Christianity. The value of transformation is set within the context of the biblical story of Saul's

conversion on the road to Damascus. Pls.' Ex. 75 at 11. Integrity is taught using the biblical story of Joseph found in Genesis. Id. at 14. Restoration is taught using the biblical story of Zacheaus being approached
[31] For example, in the InnerChange class entitled Spiritual Freedom, InnerChange inmates read Bondage Breaker, a text authored by Neil T. Anderson. The author states that "[t]he first step toward experiencing your freedom in Christ is to renounce (verbally reject) all past or present involvement with occult practices, cult teachings, and rituals, as well as non-Christian religions." Bondage Breaker at 201. In the book, InnerChange inmates are invited to renounce, among other things, "Superstitions," "Mormonism," "Jehovah's Witness," "New Age," "Christian Science," "Church of Scientology," "Unitarianism/Universalism," "Hare Krishna," "Native American spirit worship," "Islam," "Hinduism," "Buddhism (including Zen)," "Black Muslim," "and any other nonChristian religions or cults." Id. at 202-03.
[32] Watson, serving a fifty-year sentence for sexual abuse, was not close enough to his release date to qualify him for participation in treatment classes, including a parenting class in which he expressed interest. He learned, correctly, that InnerChange is available0907including its parenting classes to 0907 inmates regardless of their release date if they meet the other Dept. of Corrections and InnerChange requirements for entry.
[33] This is a Dept. of Corrections-wide rule regarding failure to complete treatment programs.
[34] "To `indoctrinate' means `[t]o instruct in a body of doctrine or principles. . . . To imbue with a partisan or ideological point of view. . . .' The American Heritage Dictionary of the English Language 894 (4th ed.2000). The Supreme Court uses `indoctrination' synonymously with `inculcation.' See, e.g., Mitchell, 530 U.S. at 858, 120 S.Ct. 2530 (O'Connor, J., concurring in the judgment); Agostini, 521 U.S. at 223, 224, 117 S.Ct. 1997; Bowen, 487 U.S. at 621, 108 S.Ct. 2562; Lemon I, 403 U.S. at 619, 91 S.Ct. 2105. To `inculcate' is `[t]o impress (something) upon the mind of another by frequent instruction or repetition; [to] instill.' American Heritage Dictionary at 889 (also using "indoctrinate" as a synonym for `inculcate')." DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 414 (2d Cir.2001).
[35] Or, as Justice O'Connor has characterized both the purpose and primary effect elements, whether a government program "has the primary effect of `endors[ing] or disapprov[ing] of . . . religion.'" Zelman, 536 U.S. at 669, 122 S.Ct. 2460.
[36] Though the prison setting of the challenged program must be considered in this analysis, the Court has already determined and given notice to the parties that the standards set forth in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64(1987), are not applicable in the Establishment Clause context. See Mem. and Order on Cross Mot. for Summ. J. at 18 n. 12 (Clerk's No. 212).
[37] This reality distinguishes the present case from Rosenberger. There, the state university merely funded, in a neutral fashion, a broad range of student-run publications. 515 U.S. at 822-23, 115 S.Ct. 2510. The fact that one publication had a religious agenda could not be attributed to the state since that publication's religious viewpoint was a private choice. Here, the state knowingly chose a religious organization to carry out a state function0907the rehabilitation of prisoners0907 through the organization's transformational methodology. In Rosenberger, the benefit to religion was incidental given the university's function of providing an open, neutral atmosphere for the exchange of ideas. See id. at 840, 115 S.Ct. 2510 ("The object of [the fund] is to open a forum for speech and support various student enterprises . . . in recognition of the diversity and creativity of student life."). "[The student publication] did not seek a subsidy because of its Christian editorial viewpoint; it sought funding as a student journal." Id. Here, on the other hand, Inner-Change and Prison Fellowship sought state aid precisely because of their unique religious programming, which was marketed as a cure for recidivist behavior. The consequence of the state's choice to fund InnerChange to accomplish the state's function 0907curing recidivism is 0907 the direct subsidy of religious indoctrination within a state-owned and operated prison. See id. at 843, 115 S.Ct. 2510 (explaining that a court's focus should not be "on the money that is undoubtedly expended by the government, . . . but on the nature of the benefit received by the recipient"). To the objective observer acquainted with all aspects of the program here, such a choice cannot help but imbue the InnerChange program with the state's endorsement.
[38] Ironically, it is not the Court, but the Defendants, who rationalize state funding of InnerChange by parsing out six universal values from the inherently religious curriculum based in a particular form of Christianity.

[39] The perspective is not only that of Inner-Change inmates, but the entire inmate population at Newton. From their perspective, InnerChange and state correctional employees work together closely to run all aspects of the Unit E living unit and classroom module. InnerChange introduction classes are conducted in non-InnerChange living units as well, providing further evidence to all the inmates that the state endorses the message of the InnerChange program.
[40] Of course, the Plaintiffs need not show that inmates are being persuaded to join the specific form of Christianity espoused by Inner-Change, although the Court finds they are in this case. The Plaintiffs only need to show that the state is funding religious indoctrination. An inmate could graduate from the InnerChange program without converting to Christianity, but a successful inmate must show he is moving toward authentic transformation in order to do so. This transformation, Christian or not, is itself an inherently spiritual process to which the state contributes through direct and in-kind payments.
The Establishment Clause, of course, abhors coercion in any form. A simple inquiry by a homeless shelter employee, whose voice is endorsed by a city, can be coercive. For example, in Community House, Inc. v. City of Boise, 2005 WL 2847390, at *6 (D.Idaho 2005), the court enjoined a city from participating in a lease with a homeless shelter because the shelter policy was to require a homeless person to explain why he or she would be offended by participating in a required religious meeting attendant with every meal. Chief Judge Winmill ruled that the demand for an explanation by homeless guests who wished to skip the religious meeting brought the shelter "perilously close to advocating attendance rather than allowing an unhindered free choice."
[41] In developing the InnerChange cost breakdowns, Jerry Wilger testified, in deposition, that an InnerChange official, Bob Jefferson, worked with legal counsel to develop sectarian and nonsectarian expense categories. In the end, Mr. Jefferson simply sat through InnerChange classes in Iowa and Texas, went through the curriculum, "and made a determination of what number of hours that were taught had to do with a sectarian part of the class and non-sectarian." Wilger Dep. at 22. For other expenses, computers for instance: "Our policy was, if the computer was going to be used for two different items, you would determine what percentage of it would be for sectarian and what percentage would be nonsectarian and then expense the computer accordingly." Id. at 18.
[42] While perhaps not in the same constitutional league as gerrymandering a whole school district in order to circumvent state and federal special education funding law, the form-fitted RFP in this case precluded other serious responses by non-religious providers. See Kiryas Joel Vill., 512 U.S. at 702, 114 S.Ct. 2481 (finding that the creation of the school district by "following the lines of a religious community where the customary and neutral principles would not have dictated the same result" meant that government improperly identified "the recipients of civil authority" by "religious criterion"). So too, here, the gerrymandered RFP was not created and released according to the customary and neutral principles associated with that process. Rather, it was crafted according to the desires of state officials who advocated a values-based release program defined by religious doctrine.
[43] Gordon Kampka was the Plaintiffs' expert on prison conditions and testified to what prison authorities would consider incentives or benefits for inmates. Kampka's credentials are stellar and, though Defendants attempted a crude impeachment based on a prior conviction, the Court found Kampka's conclusions about prison conditions credible and helpful. The Defendants' expert on prison conditions was Warden Mathes. The Court found Warden Mathes honest and appreciated his candor throughout the proceedings. Nonetheless, to the extent Mathes contested Kampka's findings, the Court must, respectfully, take into consideration Mathes' own personal involvement in the case as the Newton Facility Warden at the time Inner-Change came to Iowa.
[44] Neither were Wisconsin offenders given actual vouchers. The question of actual vouchers in these cases is not the issue. Nor must the Defendants show money being first directed at inmates and then, by inmates, to a provider. What needs to be shown is simply that an inmate's private, genuine choice directs the aid to the provider. See Freedom from Religion, 324 F.3d at 882 ("But so far as the policy of the establishment clause is concerned, there is no difference between giving the voucher recipient a piece of paper that directs the public agency to pay the service provider and the agency's asking the recipient to indicate his preference and paying the provider whose service he prefers."). This appears to be especially so in the prison context where, as Defendants showed, the introduction of literal vouchers would create security concerns.

[45] "Pre-selected" does not mean favored or preferred, but pre-approved based on neutral, non-religious criteria. See Freedom From Religion II, 214 F.Supp.2d at 916 (citing Mueller, Witters, and Zobrest as examples that schools, for instance, receiving public funding must first be accredited by the state).
[46] The Supreme Court has considered these factors to decide whether entanglement is excessive: 1) the character and purposes of the institutions that are benefitted; 2) the nature of the aid that the state provides; 3) the resulting relationship between the government and religious authority; and 4) the risk of political divisiveness. See Roemer, 426 U.S. at 750-51, 96 S.Ct. 2337 (citing Lemon I, 403 U.S. at 615, 622, 91 S.Ct. 2105). The first three factors have been discussed at length, supra. The presence of political divisiveness engendered by a law or program is no longer a valued criteria in the entanglement inquiry. See Mitchell, 530 U.S. at 825, 120 S.Ct. 2530 (citing Agostini, 521 U.S. at 233-34, 117 S.Ct. 1997, Bowen, 487 U.S. at 617 n. 14, 108 S.Ct. 2562, and Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 339-40 n. 17, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (plurality opinion)); see also Mitchell, 530 U.S. at 872 n. 2, 120 S.Ct. 2530 (agreeing that the Court has "moved away from considering the political divisiveness threatened by particular instances of aid . . . but we have never questioned its importance as a motivating concern behind the Establishment Clause . . .") (dissenting opinion).
[47] Its difficult to guess what amount this entails. The amount will depend upon the date of this judgment and, even then, the InnerChange program will likely continue in the event an appeal is taken. Fed.R.Civ.P. 62(c). The state of Iowa pays InnerChange on a quarterly basis. The most, then, at stake under the current contract would be $77,500, or one quarter of the $310,000 of state funds promised for this year.
[48] Under a service contract, a nonpublic sectarian school would provide teachers, textbooks, and other instruction materials for purely secular, required subjects like math, foreign language, science, and physical education courses.
[49] Again, as stated previously, the Dept. of Corrections, not counting the current $310,000 apportionment, has made direct Change. $843,150 came from the Telephone Fund and $686,032.70 from the Tobacco Fund.
[50] "The transformation model uses the purposeful introduction of religion as the change agent. It also focuses on teaching religious values. . . . Transformation is the process or the treatment effect that we use to bring about that result." Trial Tr. 2132-33 (testimony of Norman Cox, Vice President of Prison Fellowship and National Director of the InnerChange program).
[51] Counsel for the parties in this case have done an admirable job informing the Court about the relevant financial facts. To the extent the parties, together, determine a more precise amount, given the on-going nature of the program since trial, the Court shall amend the judgment accordingly based on a stipulation by the parties.
Save trees - read court opinions online on Google Scholar.

 
 Appeal No. 06-2741
IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, et al. Plaintiffs-Appellees - against -
PRISON FELLOWSHIP MINISTRIES, INC. AND INNERCHANGE FREEDOM INITIATIVE, INC. et al.
Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Iowa Case No. 4:03-cv-90074-RP-TJS

BRIEF OF DEFENDANTS-APPELLANTS PRISON FELLOWSHIP MINISTRIES AND INNERCHANGE FREEDOM INITIATIVE

Anthony F. Troy, Esq. Ashley L. Taylor, Jr., Esq. Robert A. Angle, Esq. Megan C. Rahman, Esq. Michael E. Lacy, Esq. TROUTMAN SANDERS, LLP 1001 Haxall Point Richmond, VA 23219 Phone: (804) 697-1200 Fax: (804) 697-1339
September 13, 2006

Kevin J. Hasson, Esq. Anthony R. Picarello, Jr., Esq.* Derek L. Gaubatz, Esq. Eric C. Rassbach, Esq. Lori E. Halstead, Esq. THE BECKET FUND FOR RELIGIOUS
LIBERTY 1350 Connecticut Avenue, NW, Suite 605 Washington, DC 20036 Phone: (202) 955-0095 Fax: (202) 955-0090
Attorneys for Defendants-Appellants Prison Fellowship Ministries, Inc. and InnerChange Freedom Initiative, Inc.
*Counsel of Record

CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, Appellants state that: Defendant-Appellant Prison Fellowship Ministries is a 501(c)(3) non-profit corporation incorporated in the District of Columbia. Prison Fellowship Ministries has no parent corporation, and no publicly-held corporation owns ten percent (10%) or more of its stock. Defendant-Appellant InnerChange Freedom Initiative is a 501(c)(3) nonprofit corporation incorporated in the Commonwealth of Virginia. InnerChange Freedom Initiative has no parent corporation, and no publicly-held corporation owns ten percent (10%) or more of its stock.
i

TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................vi SUMMARY OF THE CASE.....................................................................................1 STATEMENT OF JURISDICTION..........................................................................2 STATEMENT OF THE ISSUES...............................................................................3 STATEMENT OF THE CASE..................................................................................5 STATEMENT OF FACTS ........................................................................................7
A. DOC’s Need for High-Quality, Low-Cost Treatment Programs. .........7 B. DOC’s Process for Selecting InnerChange. ..........................................8 C. InnerChange’s Goals and Methods. ......................................................9
1. InnerChange’s distinctive approach............................................9 2. The choice to participate in InnerChange. ................................10 3. InnerChange structure and content. ..........................................11 D. The Relationship Between DOC and InnerChange. ...........................13 1. Distinguishing sectarian and non-sectarian expenses...............13 2. Allocation of authority between DOC and IFI. ........................15 3. DOC alternatives to InnerChange.............................................15 4. InnerChange and parole decisions. ...........................................16 STANDARD OF REVIEW .....................................................................................18 SUMMARY OF ARGUMENT ...............................................................................19 ARGUMENT ...........................................................................................................21 I. THE DISTRICT COURT ERRED IN CONCLUDING THAT INNERCHANGE AND PRISON FELLOWSHIP ARE STATE ACTORS........................................................................................................21
ii

A. The District Court Erred by Failing to Enter Judgment in Favor of IFI and PFM on Plaintiffs’ § 1983 Claim. ......................................21

B. The District Court Erred by Failing to Apply This Circuit’s State Actor Precedent. ..................................................................................24

C. The District Court’s Erroneous State Actor Ruling Infected Its Establishment Clause Analysis. ..........................................................26

II. THE DISTRICT COURT ERRED IN ADMITTING EXPERT TESTIMONY REGARDING “EVANGELICAL CHRISTIANITY” IN GENERAL TO DETERMINE THE BELIEFS OF INNERCHANGE AND PRISON FELLOWSHIP IN PARTICULAR......................................27

III. THE DISTRICT COURT ERRED IN CONCLUDING THAT THE

STATE’S CONTRACT WITH INNERCHANGE FOR

REHABILITATION

SERVICES

VIOLATED

THE

ESTABLISHMENT CLAUSE......................................................................29

A. The District Court Erred in Finding That the Contract at the Time of Trial Had the Impermissible Effect of Advancing Religion. ..........31

1. Iowa’s contract with IFI at the time of trial was permissible as direct aid. ..............................................................................32

a. The district court erred in concluding that the contract results in government indoctrination. ...............32

i. The applicable test is “actual diversion,” not “pervasively sectarian.”........................................32

ii. The district court’s application of the “pervasively sectarian” presumption illustrates its problems...........................................................35

iii. The current contract passes the “actual diversion” test. ......................................................37

b. The district court erred in concluding that the contract defines beneficiaries by reference to religion. ...........................................................................39

iii

c. The district court erred in concluding that the contract creates an excessive entanglement with religion. ...........................................................................44
2. Iowa’s contract with IFI at the time of trial was permissible as indirect aid. ...........................................................................46
a. The district court erred in concluding that the contract selection process was not neutral......................46
b. The district court erred in concluding that the contract does not provide benefits to a broad class of beneficiaries. ...................................................................47
c. The district court erred in concluding that state funds were not directed to InnerChange as a result of genuinely independent private choice. ...........................48
B. The District Court Erred in Finding That the Contracts Prior to the Time of Had the Impermissible Effect of Advancing Religion. ...50
1. This case is moot with respect to past contracts for rehabilitation services between IFI and DOC...........................50
2. Even if the case were not moot with respect to past contracts, those contracts did not violate the Establishment Clause. .......................................................................................51
IV. EVEN IF THE COURT DID NOT ERR IN FINDING AN ESTABLISHMENT CLAUSE VIOLATION, THE COURT DID ERR IN ITS REMEDY. .........................................................................................54
A. The District Court Erred in Ordering InnerChange and Prison Fellowship to Repay State Funds Already Spent to Provide Rehabilitation Services to Inmates......................................................54
1. If restitution is available to private Establishment Clause plaintiffs, it should not be awarded on these facts....................54
a. The district court erred by misapplying those equitable factors it considered. .......................................54
iv

b. The district court erred by failing to consider equitable factors that militate against restitution............57
2. Restitution is categorically unavailable to private plaintiffs as a remedy for Establishment Clause violations. ....................60
B. The District Court Erred in Its Award of Prohibitory Injunctive Relief. ..................................................................................................63 1. The district court erred in forever banning InnerChange from operating within the Iowa prison system. ........................63 2. The district court erred in ordering the immediate cessation of payments to InnerChange. ....................................................64
CONCLUSION ........................................................................................................64 CERTIFICATE OF COMPLIANCE.......................................................................66
v

TABLE OF AUTHORITIES
Cases ACLU v. Plattsmouth, 419 F.3d 772 (8th Cir. 2005)................................................30 Agostini v. Felton, 521 U.S. 203 (1997) .......................................................... passim Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40 (1999) ...............................................21 Blum v. Yaretsky, 457 U.S. 991 (1982) ............................................................ 21, 22 Brown v. Aventis Pharmaceuticals, 341 F.3d 822 (8th Cir. 2003)...........................54 Columbia Union Coll. v. Oliver, 254 F.3d 496 (4th Cir. 2001) ........................ 32, 35 Concord Boat v. Brunswick, 207 F.3d 1039 (8th Cir. 2000)....................................28 Cooper Tire & Rubber Co. v. St. Paul Fire and Marine Ins. Co., 48
F.3d 365 (8th Cir. 1995)..................................................................................18 Correa v. Cruisers, 298 F.3d 13 (1st Cir. 2002) .....................................................54 DaimlerChrysler v. Cuno, 126 S.Ct. 1854 (2006)............................................ 61, 62 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) ...................... 3, 27 ES Development v. RWM Enterprises, 939 F.2d 547 (8th Cir. 1991) ................. 4, 63 Families Achieving Independence and Respect v. Nebraska Dept. of
Social Services, 111 F.3d 1408 (8th Cir. 1997)..............................................18 FFRF v. McCallum, 324 F.3d 880 (7th Cir. 2003)...................................... 46, 48, 49 Flast v. Cohen, 392 U.S. 83 (1968) .........................................................................62 Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000)............................................60 Great-West Life & Annuity Ins. v. Knudson, 534 U.S. 204 (2002) .........................60 Harmon v. Kansas City, 197 F.3d 321 (8th Cir. 1999).............................................51 Heckler v. Chaney, 470 U.S. 821 (1985).................................................................63 Hunt v. McNair, 413 U.S. 734 (1973) .....................................................................35 Knieriem v. Group Health Plan, Inc., 434 F.3d 1058 (8th Cir. 2006) .....................60 Laskowski v. Spellings, 443 F.3d 930 (7th Cir.), clarified upon pet. for
reh’g, 456 F.3d 702 (7th Cir. 2006) ................................................. 60, 61, 62 Lee v. Weisman, 505 U.S. 577 (1992) .....................................................................30
vi

Lemon v. Kurtzman, 411 U.S. 192 (1973) ....................................................... passim Meek v. Pittenger, 421 U.S. 349 (1975) ..................................................................35 Menendez-Donis v. Ashcroft, 360 F.3d 915 (8th Cir. 2004).....................................18 Midwest Farmworker v. Dept. of Labor, 200 F.3d 1198 (8th Cir. 2001).................51 Mitchell v. Helms, 530 U.S. 793 (2000) .......................................................... passim Mlynarik v. Bergantzel, 675 N.W.2d 584 (Iowa 2004) ...........................................59 Montano v. Hedgepeth, 120 F.3d 844 (8th Cir. 1997)......................................... 3, 25 Moss v. Civil Aeronautics Bd., 521 F.2d 298 (D.C. Cir. 1975)...............................55 O’Lone v. Shabazz, 482 U.S. 342 (1987) ........................................................... 3, 29 Peck v. Lansing, 148 F.3d 619 (6th Cir. 1998)........................................................46 Rendell-Baker v. Kohn, 457 U.S. 830 (1982).................................................. passim Richardson v. McKnight, 521 U.S. 399 (1997) .......................................................23 Roemer v. Board of Public Works, 426 U.S. 736 (1976) ........................................55 Royal v. Kautzky, 375 F.3d 720 (8th Cir. 2004) .......................................................50 Santa Fe v. Doe, 530 U.S. 290 (2000).....................................................................30 Scott v. Grinnell Mut. Reinsurance, 653 N.W.2d 556 (Iowa 2002)........................58 State ex rel. Palmer v. Unisys, 637 N.W.2d 142 (Iowa 2001) ................................57 Texaco Puerto Rico v. Dept. of Consumer Affairs, 60 F.3d 867 (1st
Cir. 1995) .......................................................................................................55 Thomas v. Review Board, 450 U.S. 707 (1981) ................................................. 3, 27 Turner v. Safley, 482 U.S. 78 (1987).......................................................................29 U.S. v. Hoac, 990 F.2d 1099 (9th Cir. 1993)............................................................28 U.S. v. Standard Oil, 332 U.S. 301 (1947) ..............................................................63 West v. Atkins, 487 U.S. 42 (1988) ..........................................................................23 Young America. v. Affiliated Computer Servs., #424 F.3d 840 (8th Cir.
2005) ..............................................................................................................61 Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ........................................... passim Zobrest v. Catalina Hills School Dist., 509 U.S. 1 (1993) ......................... 33, 35, 37
vii

Statutes IOWA ADMIN. CODE § 201-20.20(2) .........................................................................61 IOWA ADMIN. CODE § 904-508A..............................................................................61
Other Authorities Douglas Laycock, The Scope and Significance of Restitution, 67 TEX.
L. REV. 1277 (1989).......................................................................................57 Rules
Federal Rule of Appellate Procedure 28........................................................... 29, 46 Treatises
RESTATEMENT OF RESTITUTION § 1..........................................................................57
viii

SUMMARY OF THE CASE The lower court struck down InnerChange, an innovative prison program that by all accounts has done enormous good. The program not only saved Iowa money that it could ill afford to spend on prisoners, but, more importantly, saved Iowans from the burglaries, robberies, rapes, and murders that went uncommitted because InnerChange reduced recidivism among former prisoners who completed its challenging curriculum. The lower court erred on many grounds, but five errors bear emphasis here. First, the court concluded, without briefing or putting Plaintiffs to their proof, that present Appellants are “state actors” bearing the same obligation to be secular as Iowa itself. Second, the court used expert testimony concerning what “Evangelical Christians” generally believe as a substitute for determining how InnerChange’s particular program was actually implemented. Third, the court relied on that unreliable account of InnerChange’s beliefs to argue it is “pervasively sectarian” and so disqualified from government contracting. Fourth, the court failed to defer to prison authorities under Turner v. Safley. Fifth, the court imposed the unprecedented and severe remedy of restitution, never before granted to private Establishment Clause plaintiffs, and certainly unwarranted in this case. Because the length of the decision below and the importance of the issues are both exceptional, Appellants request thirty minutes of oral argument per side.
1

STATEMENT OF JURISDICTION Present Appellants join the jurisdictional statement in Iowa’s brief, except to add that this Court does not have jurisdiction over claims that are moot, or that Appellees lack standing to bring, as detailed below.
2

STATEMENT OF THE ISSUES 1. Whether the court erred in concluding that IFI and PFM are state actors. Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Montano v. Hedgepeth, 120 F.3d 844 (8th Cir. 1997). 2. Whether the court erred in admitting expert testimony to determine the religious beliefs of parties, particularly where the expert never interviewed the parties, and in crediting that expert testimony over the contrary firsthand testimony of the parties themselves. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Thomas v. Review Board, 450 U.S. 707 (1981). 3. Whether the court erred by failing to apply the proper standard for Religion Clause claims by prisoners. O’Lone v. Shabazz, 482 U.S. 342 (1987). 4. Whether the court erred in concluding that IFI’s contract with Iowa is permissible under the Establishment Clause as “direct” aid. Mitchell v. Helms, 530 U.S. 793 (2000); Agostini v. Felton, 521 U.S. 203 (1997) 5. Whether the court erred in applying the “pervasively sectarian” presumption as part of the test for “direct” aid. Mitchell. 6. Whether the court erred in concluding that IFI’s contract with Iowa is permissible under the Establishment Clause as “indirect” aid. Zelman v. SimmonsHarris, 536 U.S. 639 (2002).
3

7. Whether the court erred in imposing equitable restitution on IFI and PFM, forcing them to repay to DOC the state funds already spent to provide DOC valuable rehabilitation services. Lemon v. Kurtzman, 411 U.S. 192 (1973)(Lemon II).
8. Whether the court erred in forever prohibiting IFI from contracting with Iowa for compensated rehabilitation services. ES Development v. RWM Enterprises, 939 F.2d 547 (8th Cir. 1991); Mitchell.
9. Whether the district court erred in prohibiting Iowa from paying IFI for services already rendered under their contract. Lemon II.
4

STATEMENT OF THE CASE This case arises from Iowa’s decision to contract with a third-party provider to implement a values-based, pre-release program designed to improve public safety by providing cost-effective inmate treatment, improving prison living and working conditions, and reducing inmate recidivism. After engaging in an open and public Request for Proposal (“RFP”) process in August 1998, Iowa’s Department of Corrections (“DOC”) contracted with Prison Fellowship Ministries (“PFM”) and InnerChange Freedom Initiative (“IFI”) for the desired values-based, pre-release program. Under that contract, PFM and IFI agreed to provide DOC with such a program (“InnerChange” or the “Program”), and DOC agreed to reimburse PFM and IFI for some nonreligious Program expenses. Beginning in 1999, InnerChange was implemented at the Newton Correctional Facility (“NCF”) in Newton, Iowa. IFI continued to operate InnerChange at NCF under subsequent contracts with DOC following additional RFPs in 2002 and 2005. Since InnerChange began, DOC has paid IFI approximately $1.5 million toward the Program’s non-religious activities, which represents 35-40% of IFI’s costs of operating the Program. Plaintiffs, an assortment of inmates and taxpayers, filed suit against officials with the DOC and Board of Corrections, PFM, and IFI on February 12, 2003, claiming that DOC’s contract with IFI for the Program violates the Establishment
5

Clause. The parties cross-moved for summary judgment, but their motions were largely denied on April 29, 2005.
The court held an 18-day bench trial between October 24 and December 1, 2005. On June 2, 2006, it issued an opinion declaring that the contractual relationship between Iowa and IFI and PFM violated the Establishment Clause. It permanently enjoined InnerChange from further operation at NCF, or any other institution within DOC, that uses government funds. Finally, the court ordered PFM and IFI to repay DOC all state funds paid to IFI since the Program began, but stayed injunctive relief pending appeal.
6

STATEMENT OF FACTS PFM is a non-profit organization that serves prisoners, ex-prisoners, crime victims, and their families. Op.12. IFI is a separate non-profit corporation that operates InnerChange, a pre-release prisoner treatment program. Op.13. IFI operates InnerChange programs in Iowa and six other states (Texas, Minnesota, Kansas, Tennessee, Arkansas, and Missouri). Op.13. A. DOC’s Need for High-Quality, Low-Cost Treatment Programs. In 1997, Iowa faced a growing crisis of prison overcrowding. Op.27. In response, Iowa built NCF, a medium-security facility, and began moving low-risk inmates to NCF even before completing construction. Id. Simultaneously, DOC faced significant budgetary restraints that affected the construction of NCF and programs that could be offered there. Op.27. Then-DOC Director Walter Kautzky responded by directing a search for innovative ways to meet NCF’s programming challenges. Op.28. As part of that process, DOC’s Coordinator for Offender Services gathered information about the InnerChange program in Texas and sought to determine whether that or a similar values-based program could work in Iowa. Id. DOC was unable to identify any other providers of in-prison, values-based programming. Op.28-29. DOC officials visited Texas’ InnerChange program and learned it was built upon a religious model. Op.29. While DOC officials considered designing a
7

secular program based on InnerChange, they recognized that InnerChange offered numerous treatment classes and excellent post-release aftercare that was much too expensive for DOC to replicate. Op.29-30. Not only could IFI offer the same inprison and post-release components at a much lower cost, but DOC officials believed that the universal, secular values InnerChange taught could be instilled in offenders, regardless of any religious context in which they might be offered. Op.30.
B. DOC’s Process for Selecting InnerChange. In August 1998, Iowa’s Department of General Services (“DGS”), which managed Iowa’s procurement of services, issued a RFP to the general public for the establishment of a values-based, pre-release program at NCF. Op.31,n.19, 34. PFM and IFI submitted an initial proposal to Iowa on September 16, 1998, and an amended proposal on December 23, 1998. Op.34. While the RFP requested “noncompensated” services, the InnerChange proposal sought limited state funding. Id. DGS received no other responses to the RFP, so DOC accepted InnerChange’s proposal. On March 24, 1999, DOC entered into a contract providing for InnerChange’s operation at NCF, and reimbursing IFI only for “non-sectarian” costs. Op.34-35. Pursuant to an extension clause, DOC renewed the contract in 2000 and 2001. Op.35.
8

In May 2002, DGS issued a second RFP to the general public for a valuesbased, pre-release program at NCF; again, IFI submitted the only response. Op.36. In September 2002, DOC signed a contract to continue InnerChange, agreeing again to reimburse “nonsectarian” Program expenses. Id. DOC renewed the contract in 2003 and 2004 under an extension clause.
In April 2005, Iowa issued a third RFP for a similar program. Id. IFI submitted a proposal on June 8, 2005, and Emerald Correctional Management submitted one on June 10, 2005. Id. DOC awarded the 2005 contract to IFI because the InnerChange program offered a fuller array of services, at a price, $310,000, that was less than Emerald’s $562,000 bid, and much less than the approximately $1,000,000 that DOC officials estimated it would cost DOC to run such a program. Id.
C. InnerChange’s Goals and Methods. 1. InnerChange’s distinctive approach.
The “ultimate goal” of InnerChange “is to see ex-prisoners become contributing members of society, by becoming responsible leaders in their family, church and community.” Op.22. More specific Program goals are to “[r]educe the rate of re-offense and the resulting social costs” and to “[p]rovide a positive influence in prison.” Id. These goals are accomplished by instilling in inmates six core values: integrity, restoration, responsibility, fellowship, affirmation, and
9

productivity. Op.58. These are the same pro-social values that DOC’s own rehabilitation programming seeks to instill, Op.30, and that Plaintiffs’ inmate witnesses all acknowledged to be universal and included within their various faiths. Op.58. InnerChange’s curriculum teaches these six values from a Christian perspective. Op.20,n.13, 59-61.
2. The choice to participate in InnerChange. Inmates aren’t required to participate in InnerChange. Op.53. Neither DOC nor IFI threatens inmates with punishment or the loss of privileges, or otherwise pressures them, if they don’t join InnerChange. Id. IFI doesn’t require inmates to be Christian or to “accept Jesus Christ as their Savior” to participate in InnerChange, Op.53&n.26, but instead requires only that inmates want to be in the Program and express a desire to change. Op.53. DOC additionally requires that inmates express a commitment to complete the Program, meet the criteria for medium or minimum custody, and be suitable for housing in multi-person dry cells. Op.56. Before joining, inmates must sign a form expressing their informed consent to participate in a program that includes Christian religious content. Op.53&n.26. The form requires inmates to expressly acknowledge that their decision to participate in InnerChange “is of [their] own free will”; “will not affect [their] consideration for parole”; “[t]hat [their] good time will not be increased because
10

[they] participated in the program”; and “[t]hat [they] do not have to be of the Christian faith to participate in the Program.” Id. In addition, Program participants must complete an introduction class followed by a four-week orientation program to give inmates even more information about InnerChange. Op.53-56.
Inmates may leave InnerChange on their own initiative at any time and are not penalized for doing so, as the consent form confirms. Op.53&n.26, 70. Inmates who quit InnerChange treatment classes early don’t receive credit for the class, just like inmates failing to complete DOC treatment classes. Op.6970&n.33.
3. InnerChange’s structure and content. InnerChange is a residential treatment program—sometimes called a “therapeutic community”—that consists of four phases. During Phases I (twelve months long) and II (six months long), inmates live together in Unit E, one of NCF’s three, general population units that each house approximately 242 inmates. Op.49, 65. Unit E differs physically from the other general population units (C and D), in that it has communal bathrooms instead of in-cell toilets, and individually locking wooden doors rather than automatically locking steel doors. Op.51-52. The Phase I and II curriculum consists of some classes on religious topics. Op.73. It also includes classes meeting the same rehabilitative treatment criteria as
11

DOC classes on the same topics: certified substance abuse treatment, anger
management, victim impact, financial management, business, criminal thinking,
computer classes, and family parenting classes. Op.70, 73, 75. To varying
degrees, InnerChange’s version of these courses reflects a Christian perspective.
For example, while the substance abuse curriculum reflects a high level of
religious content, Op.76-77, and the financial management class includes some
religious content, Op.75-76, the computer training class is “thoroughly secular.”
Op.75.
In addition to classes, InnerChange includes religious services, as well as
community meetings and group sessions. Op.65-69. InnerChange allows inmates to attend religious services of other faiths, Op.83,1 and has graduated inmates of
other faiths and of no faith. Apx.216, 218, 235, 295-96, 320-23, 329-30.
Phases III and IV are characterized as “aftercare programming,” as they
begin when inmates “graduate” to living outside NCF, first in a work release center
(Phase III), and then in the broader community (Phase IV). Op.80, 85. To stay in
1 The lower court fails to note that IFI inmates are not graded or evaluated on their participation in religious activities, like praying or singing, or their “religiosity” or “Christianity.” Apx.246, 328. Inmates aren’t required to clap or sing during community meetings or revivals. Apx.223, 342. The only participation requirement for revivals is attending and not being disruptive. Apx.389. And even attendance isn’t always required, as inmates may be permitted to miss InnerChange programming to attend their own religious services. Apx.97, 220, 295-97, 320-21, 330, 395-96. Indeed, inmates are allowed to maintain and practice their own religious faiths and beliefs—or no religion at all—while in InnerChange. Apx.209-11.
12

InnerChange at this stage, inmates agree to stay employed, attend church regularly, and maintain behavioral standards consistent with the pro-social values the Program instills. Op.80. In Phase IV, InnerChange helps inmates find housing, employment, a mentor, and a church, as well as providing other aftercare services such as case management, intervention in crisis situations, and securing immediate needs such as clothing and hygiene items. Op.82.
IFI and PFM believe this approach to rehabilitation is uniquely effective and beneficial, both for individual inmates and the broader society. Op.45. DOC officials are consistently satisfied with InnerChange’s results. Op.89-90.
D. The Relationship Between DOC and InnerChange. 1. Distinguishing sectarian and non-sectarian expenses.
All contracts between DOC and IFI explicitly limited the use of government funds to cover only the cost of “nonsectarian” activities, up to a certain annual cap.2 IFI defined sectarian as “[p]ertaining to the religious aspect of the IFI program,” and non-sectarian as “not specifically pertaining to religion or a religious organization.” Op.43.
For contracts before July 1, 2004, Program costs were allocated between “sectarian” and “nonsectarian” by a method tailored to the type of expense incurred. Salaries were allocated as a percentage of time spent on “sectarian” and 2 Under the 1999 contract, the cap was $229,950. Op.34-35. For FY 2001 and 2002, the cap was $191,625. Op.36. For FY 2003, 2004, and 2005, the cap was increased to $310,000 to account for Program growth. Op.38.
13

“nonsectarian” activities. Op.43. IFI identified other expenses as “sectarian” or “nonsectarian” in the detailed ledger reports used to bill DOC. “Nonsectarian” expenses included computer hardware, software, and repairs, phone, internet, postage, copies, and similar office necessities. Op.44.
The DOC supervisor relied on the contract language itself, ongoing conversations with IFI employees, and IFI’s detailed billings to monitor IFI’s use of state funds and assure they weren’t used for “sectarian” costs. Op.42. DOC staff never complained to DOC management that DOC funds were being misdirected to religious purposes. Id. Warden Mapes testified that the amount DOC paid IFI did not exceed the value of nonreligious services IFI provided. Op.43.
At one point, DOC funds were used to purchase items with religious content, including key rings, bookmarks, a music license, a booklet subscription, and promotional brochures. Op.44-47.3
For the fiscal year beginning July 1, 2004, DOC and IFI changed the method of payment for “non-sectarian” expenses incurred for Phases I and II, so that DOC would thereafter pay a per diem rate of $3.47 for each InnerChange participant, up to the same cap of $310,000. Op.38-39.
3 As discussed below, the district court omits the trivial amount and accidental character of these billings, and that they were since corrected.
14

From 1999 through June 30, 2005, IFI received $1,529,182.70 from DOC. Op.40. These DOC payments represent only 35-40% of IFI’s direct cost of operating InnerChange. Op.41.
2. Allocation of authority between DOC and IFI. Both DOC and IFI have the right to refuse any inmate admission to the Program, and expel any inmate. Op.69. DOC has no control over the selection or teaching of the IFI curriculum, or the hiring of IFI staff or volunteers, except for routine background checks. Apx.332-33. DOC retains authority over all security matters within NCF. Apx.254, 287, 292, 363, 368. DOC expects all contractors that operate within the prison walls, including IFI staff, to help provide security supervision and take corrective action, just like any other DOC staff member would. Op.86-87.
3. DOC alternatives to InnerChange. Participation in InnerChange isn’t the only way for inmates to obtain the rehabilitative treatment classes InnerChange provides. InnerChange covers the following core correctional treatment classes: certified substance abuse treatment, anger management, victim impact, criminal thinking, financial management, and marriage/family/parenting. Op.70, 73. DOC provides classes taught from an exclusively secular perspective in all of these treatment areas, both as individual classes, and as part of broader treatment programs. Apx.1237-40. These alternative classes are offered at various DOC institutions. Id.
15

The lower court omits any mention of DOC’s community-based corrections system, which provides comprehensive “aftercare” programming. Apx.382-83. These programs provide identical or similar services as InnerChange aftercare, such as pretrial release programs, pre-sentence investigation, probation, residential facilities, and post-institutional programs including parole, work release, OWI facilities, and restitution programs. Id.
4. InnerChange and parole decisions. InnerChange’s consent form specifies that inmates are not promised reduced sentences or early parole for entering InnerChange. Op.53. In practice, moreover, the Iowa Parole Board doesn’t treat InnerChange inmates differently than other inmates. Op.70. The lower court opined that “the Iowa Parole Board would likely look favorably on any inmate who took the initiative and completed his recommended programming as early as possible.” Op.71. But it omitted the uncontested testimony of Parole Board chair Elizabeth Robinson, stating that the Board often viewed voluntary participation in treatment programming with suspicion. Apx.360, 362. The court also stated that InnerChange allows inmates to start their treatment earlier than if they obtained it by DOC’s own treatment classes. Id. However,
16

InnerChange is longer than any of DOC’s other treatment programs. Op.71; Apx.1240. Therefore, it must start earlier than the others to finish at the same time.
17

STANDARD OF REVIEW In appeal from a bench trial, “conclusions of law are subject to de novo review.” Cooper Tire & Rubber Co. v. St. Paul Fire and Marine Ins. Co., 48 F.3d 365, 369 (8th Cir. 1995). “Mixed questions of law and fact that require the consideration of legal concepts and the exercise of judgment about the values underlying legal principles are also reviewed de novo.” Id In reviewing First Amendment claims, the appellate court has “a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court…we are obliged to make a fresh examination of crucial facts.” Families Achieving Independence and Respect v. Nebraska Dept. of Social Services, 111 F.3d 1408, 1411 (8th Cir. 1997) (en banc). Findings of non-crucial facts are reviewed for clear error. Id. Under that standard, this Court “can overturn factual findings that [it] conclude[s] are clearly wrong even though they are not unreasonable.” Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004).
18

SUMMARY OF ARGUMENT The lower court struck down InnerChange primarily because it is “pervasively sectarian.” That is, InnerChange is so thoroughly imbued with religion that any government funds it receives—no matter how carefully allocated to secular purposes—are irreparably tainted. Not only does this ruling disinter an analytical category that a majority of the Supreme Court recently buried, it illustrates one of the principal reasons the doctrine was buried in the first place: it tends to disqualify people and groups from government funding streams precisely because they are very religious (which should not matter at all), and without regard to how carefully they administer government funds (which is all that should matter). Here, the problem is even worse, because the court not only rejected the Program based on the intensity of InnerChange’s faith component, it got the faith component wrong, and by a wildly improper method. The court admitted expert testimony on both the “objective” content of “Evangelical Christianity,” and whether InnerChange is “situated” in that group. But the expert didn’t interview a single InnerChange staff member, nor a single inmate, and never observed their values in action. The result is a caricature of IFI’s beliefs, whereby its staff are incapable of doing anything purely secular, and they are “at odds” with (and inclined to “coerce” or “discriminate” against) people of any other faith. The court
19

credited this testimony over firsthand testimony that members of other faiths and unbelievers alike have successfully completed InnerChange and gone on to begin productive, crime-free lives.
The lower court also erred in finding that IFI and PFM, mere government contractors, are nonetheless state actors. Nevermind that this broad holding would sweep all manner of government contractors into the strictures of the Bill of Rights and Fourteenth Amendment. For present purposes, it’s enough to note the ruinous effect this conclusion had on the rest of the court’s logic. Unlike other government contractors—religious schools and universities, for example—that need not forfeit their religious identity, InnerChange could not be significantly religious at all. Why not? Well, because it’s a state actor, of course.
After finding an Establishment Clause violation on these grounds, the court ordered IFI to disgorge to Iowa over $1.5 million—all of the contract payments it received (and spent) to provide valuable inmate rehabilitation services. This is the first time any court has awarded a private Establishment Clause plaintiff the equitable remedy of restitution—a transfer of funds not to the plaintiff, but from one unwilling co-defendant to another. Even if this remedy were properly available to private Establishment Clause plaintiffs (and it isn’t) it shouldn’t have been awarded here: the court erred grievously in considering equitable factors, misapplying the ones it considered, and failing to consider others entirely.
20

ARGUMENT I. THE DISTRICT COURT ERRED IN CONCLUDING THAT
INNERCHANGE AND PRISON FELLOWSHIP ARE STATE ACTORS. The lower court committed reversible error at the outset by ruling that IFI and PFM were state actors for all purposes. Op.2&n.3. By this ruling, the court not only reached out to address an issue that Plaintiffs (despite their burden of proof) never “actively litigated,” id., it also overlooked controlling authority. This erroneous ruling infected the remainder of the court’s analysis and should be reversed. A. The District Court Erred by Failing to Enter Judgment in Favor
of IFI and PFM on Plaintiffs’ § 1983 Claim. IFI and PFM are private parties that can only be held liable under 42 U.S.C. § 1983 for unconstitutional acts committed “under color of state law,” which is equivalent to the “state action required under the Fourteenth Amendment.” Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). In determining whether a private party is a “state actor,” a court should not examine all of the private party’s possible activities, but instead focus on “the specific conduct of which the plaintiff complains.” Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 51 (1999); see also Blum v. Yaretsky, 457 U.S. 991, 1003 (1982)(“Faithful adherence to the ‘state action’ requirement…requires careful attention to the gravamen of the plaintiff's complaint.”). Here, Plaintiffs challenge DOC’s contractual relationship with IFI
21

and PFM under which DOC expended state funds to purchase rehabilitative services from IFI and PFM.
The lower court’s terse discussion (one footnote in a 140-page opinion) states two reasons for concluding IFI and PFM were state actors. First, without citing any authority, the court asserted that the contractual relationship with Iowa transformed IFI into a state actor. Op.2&n.3. This fails to recognize that the decisions to select IFI and PFM as contractors and to expend state funds under that contract were Iowa’s, not IFI’s or PFM’s. Sovereign decisions by Iowa provide no basis for bootstrapping a state action finding onto IFI or PFM. Moreover, the lower court failed to apply controlling Supreme Court precedent holding that a contractor’s “receipt of public funds” doesn’t turn private action into state action.4 In short, IFI’s “fiscal relationship with the State is not any different from that of many contractors performing services for the government,” and therefore provides no basis for finding state action. Rendell-Baker, 457 U.S. at 831.
Alternatively, the lower court asserts that IFI and PFM are state actors because they perform a “public function” by providing rehabilitation services. This similarly ignores controlling precedent. The Supreme Court has emphasized that the relevant question is not simply whether a private group is serving a “public
4 Rendell-Baker, 457 U.S. at 840 (extensively regulated private service provider receiving 90% of budget from state was not state actor); Blum, 457 U.S. at 1008 (same).
22

function, [but instead]…whether the function performed has been traditionally the exclusive prerogative of the State.” Id. (quotation omitted). The lower court cites no case holding that rehabilitation is “a function traditionally and exclusively reserved to the state.” That is because Richardson v. McKnight, 521 U.S. 399 (1997), precludes that holding.
Richardson involved a suit against guards employed by a private prison management corporation under a state contract. Id. at 401-02. The Court didn’t reach whether § 1983 permitted such a suit and addressed only the narrow question whether the guards could invoke qualified immunity. See id. at 413. The Court held they could not, because “correctional functions have never been exclusively public,” providing a long historical record in support. Id. at 405-07. Thus, the lower court’s holding that rehabilitation is a correctional function in the exclusive province of the state is directly contradicted by Richardson.
Nor does West v. Atkins, 487 U.S. 42 (1988), suggest that rehabilitation is an exclusive state function. There, the Court held that a private physician employed by North Carolina to provide medical services to state prison inmates acted “under color of state law” when treating inmates. Id. at 54. Central to its analysis was the fact that states have a federal “constitutional duty to provide adequate medical treatment to those in its custody.” Id. at 55.
23

Here, unlike provision of medical services, there is no constitutional obligation to rehabilitate prisoners. Iowa, like other states, may choose to provide rehabilitation services, or not. Although a state may make a policy choice to invest in rehabilitative services, that discretionary choice does not convert those services into an exclusive state function. See Rendell-Baker, 457 U.S. at 842 (policy choice of state to undertake special educational services for maladjusted youth did not transform services into exclusive state prerogative).
Moreover, there are literally hundreds of social service providers (religious and non-religious, non-profit and for-profit) nationwide that seek to assist prisoners and parolees in rehabilitation. The lower court’s ill-considered holding that rehabilitation is an exclusive state function risks transforming every church with a prison rehabilitation ministry into a state actor. Cf. id. (“that a private entity performs a function which serves the public does not make its acts state action”).
In sum, the lower court erred in holding that Plaintiffs carried their burden of proving that IFI and PFM were state actors. Instead, judgment and an order of dismissal should have been entered in favor of IFI and PFM.
B. The District Court Erred by Failing to Apply This Circuit’s State Actor Precedent.
Even if IFI or PFM did perform some exclusive state functions – whatever those may be in this case – that still would not mean that IFI and PFM were state actors for all purposes under the contract. This Court’s decision in Montano v.
24

Hedgepeth, 120 F.3d 844 (8th Cir. 1997), makes clear that IFI and PFM are not state actors when carrying out religious functions.
Montano held that prison chaplains, even those employed by the state, are not “state actors” when engaged in religious functions. The Court explained that
a prison chaplain…sometimes behaves in ways which are beyond the bounds of governmental authority. In matters of faith, a pastor…is not answerable to an administrative supervisor. The teachings endorsed and practiced by recognized spiritual leaders are not, and should not be, subject to government pressures. Id. at 850. Thus, Montano recognized that the mere fact that prison inmates are in state custody doesn’t mean that all services they receive are necessarily provided “under color of state law.” Moreover, Montano held that a religious service provider may be a state actor for certain functions, but not for others. Id. (“In contrast to the administrative and managerial tasks [chaplains are] required to perform…interpretation and implementation of church doctrine do not constitute state action.”). Montano thus stands for two important principles: (1) a religious entity can provide services in prison without acting “under color of state law,” and (2) religious service providers, even if “state actors” for certain functions, are not state actors when engaged in religious functions. Applying these principles here (which the lower court conspicuously failed to do) makes clear that IFI and PFM were not acting under color of law when engaged in religious functions, (e.g., leading
25

Sunday worship services). They could only have been acting “under color of state law” when engaged in secular functions, and even then, only when the functions were the state’s exclusive prerogative.
Thus, the lower court erred by wrongly concluding that IFI and PFM were state actors for all purposes. Instead, it should have found that, to the extent Plaintiffs’ claims challenged any religious or rehabilitative functions performed by IFI or PFM, they were not state actors for those purposes. For this reason also, the lower court’s state actor holding should be reversed.
C. The District Court’s Erroneous State Actor Ruling Infected Its Establishment Clause Analysis.
The lower court’s error regarding state action infected the rest of its legal analysis, as the court proceeded to collapse any distinction between IFI or PFM and the State in considering the merits of the Establishment Clause claim:
• “As a state actor, [IFI] speak[s] on behalf of the government….” • “[A]s state actors, [IFI] employees cloak themselves in the mantel
of government … [and] are burdened with the same responsibilities of any state employee….” • “As state actors, [IFI’s] interest in avoiding an Establishment Clause violation ‘may be characterized as compelling.” Op.99-100. This improper analytical shortcut distorted the court’s legal analysis by causing an improper focus on whether IFI’s actions were advancing religion, rather than on whether the government’s actions did.
26

II. THE DISTRICT COURT ERRED IN ADMITTING EXPERT TESTIMONY REGARDING “EVANGELICAL CHRISTIANITY” IN GENERAL TO DETERMINE THE BELIEFS OF INNERCHANGE AND PRISON FELLOWSHIP IN PARTICULAR. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589-90 (1993),
requires expert testimony to be both reliable and relevant to be admissible. The lower court admission (Op.13-18&nn.9-11) of Professor Sullivan’s testimony to describe “Evangelical Christianity” generally, and to identify IFI and PFM as “Evangelical Christian” fails both tests. To the extent Sullivan’s testimony may be reliable, it is irrelevant; to the extent it may be relevant, it is unreliable.
Sullivan’s academic credentials may qualify her to testify reliably about “Evangelical Christianity” in general, but that general testimony is irrelevant to how this particular program is actually administered in this particular prison. Ever since Thomas v. Review Board, 450 U.S. 707, 715-16 (1981), the Supreme Court has forbidden courts from determining the beliefs of parties based on evidence of the beliefs of others—including of the broader religious group of which the individuals may be part—insisting instead that courts take evidence of what the particular believers before the court actually believe. Flouting this instruction, the court admitted Sullivan’s broad pronouncements about “Evangelical Christianity” for precisely this improper purpose. It ascribed the beliefs of this broader class
27

wholesale to IFI and PFM, Op.13-18, notwithstanding otherwise uncontradicted testimony by actual IFI staff about their actual beliefs (and conduct).5
Correspondingly, where Sullivan’s testimony was focused on this particular
program enough to be potentially relevant, it was unreliable for lack of an
adequate factual predicate. Although Sullivan reviewed curriculum and other
written materials, she never visited the site, saw the Program in operation, or spoke
to InnerChange staff or inmates. Apx.221-22. See Concord Boat v. Brunswick, 207 F.3d 1039, 1057 (8th Cir. 2000)(“Expert testimony that is speculative is not
competent proof and contributes nothing to a legally sufficient evidentiary basis.”)(quotations omitted); U.S. v. Hoac, 990 F.2d 1099, 1103 (9th Cir.
1993)(expert testimony excluded as unreliable and irrelevant because of limited
contact with person who was subject of testimony).
Notably, Sullivan disavowed any attempt to testify about InnerChange’s
actual administration (sacrificing relevancy to reliability), see Apx.221-22 (“I was
not asked to evaluate the program as it is administered”), but the court disavowed
the use of her testimony for anything but actual administration (sacrificing
5 Unsurprisingly, the beliefs of hypothetical “Evangelical Christians,” instead of actual IFI staff, buttress two of the court’s critical holdings: (1) the InnerChange Program is “pervasively sectarian,” i.e., its staff are so boundlessly driven to convert inmates that state money covering any portion of their salaries must be deemed to support that conversion effort; and (2) InnerChange isn’t actually offered to a “broad class of beneficiaries without regard to religion,” because its beliefs are so “at odds” with inmates of other faiths. These arguments are addressed below.
28

reliability to relevancy). See Op.15&n.9 (Sullivan testimony not relevant to “the

merits of InnerChange and [PFM’s] religious beliefs, but the constitutionality of

their actions”)(second emphasis added). Either way, the court abused its

discretion in admitting Sullivan’s testimony.

III. THE DISTRICT COURT ERRED IN CONCLUDING THAT THE

STATE’S CONTRACT WITH INNERCHANGE FOR

REHABILITATION

SERVICES

VIOLATED

THE

ESTABLISHMENT CLAUSE.

The court below analyzed the federal and state Establishment Clause claims

according to the familiar and controversial three-part structure of Lemon v.

Kurtzman¸ 403 U.S. 602, 612-13 (1971), examining whether the government

action: (1) has a secular purpose; (2) has a primary effect that neither advances nor

inhibits religion; and (3) does not foster excessive entanglement with religion.

The court below erred under the Establishment Clause, first, in applying the

Lemon framework only, without the additional overlay that applies to all

constitutional claims by prisoners, see Turner v. Safley, 482 U.S. 78 (1987),

including claims under the Religion Clauses of the First Amendment, see, e.g.,

O’Lone v. Shabazz, 482 U.S. 342 (1987)(applying Turner deference with equal

force to Free Exercise Clause claim). Op.92,n.36. The State has developed these

arguments at greater length in its brief and present Appellants now adopt those

arguments. See FRAP 28(i).

29

The lower court additionally erred within the Lemon framework, to the
extent it applies here.6 The court correctly found that Iowa’s contract with IFI to
provide rehabilitation services serves a predominately secular purpose. Op.92-95.
However, the court erred in holding that the contract had the impermissible
“effect” of advancing religion as either “direct” (Op.95-110, 123-25) or “indirect”
aid (Op.110-23).7
Appellants note initially that, although the InnerChange at NCF has changed
(indeed, improved) substantially since it began, the court below lumped all forms
of the program together for purposes of its analysis. This is error, as each distinct
contract represents a distinct set of facts raising distinct substantive and procedural
6 This Court recently declined to apply Lemon, ACLU v. Plattsmouth, 419 F.3d 772, 778 n.8 (8th Cir. 2005), and Appellants don’t encourage its application here. Instead, as set forth below, we analyze the contract between IFI and DOC according to the Supreme Court’s more recent funding cases, which have modified the Lemon test substantially, including in their distinction between “direct” and “indirect” aid. See infra Section III.A. 7 The lower court did not apply any other Establishment Clause tests. Although the lower court occasionally described InnerChange as “coercive,” Op.101, 105-06, it never analyzed the Program under the coercion test of Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe v. Doe, 530 U.S. 290 (2000). In any event, the undisputed facts in the record preclude any finding of “coercion.” See Facts C.2.,D.3.-4. Similarly, the court occasionally describes Iowa as having “endorsed” InnerChange, its goals, or its religious message, Op.100&n.37, 106&n.39, 116, 120, but this is always in the context of its discussion of the contract as either direct or indirect aid, never as an independent basis for finding an Establishment Clause violation. And because the tests for direct and indirect aid are both satisfied, there is no “endorsement.” Zelman, 536 U.S. at 652-53; Agostini, 521 U.S. at 235. And finally, the lower court concluded that Iowa’s Establishment Clause confers no greater rights than the federal one, Op.1-2&n.1, so that no distinct analysis is required to reverse that state claim.
30

legal issues. Appellants begin their analysis with the only set of facts that still presents a live case or controversy, namely, the contract in effect at the time of trial. See infra Section III.B.1.
A. The District Court Erred in Finding That the Contract at the Time of Trial Had the Impermissible Effect of Advancing Religion.
The Supreme Court’s analysis of the “effects” of government aid under the Establishment Clause depends on whether the aid flows “directly” or “indirectly” to religious institutions:
[O]ur decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals. Zelman, 536 U.S. at 649. Where aid is direct, the Court uses “three primary criteria…to evaluate whether government aid has the effect of advancing religion….” Agostini, 521 U.S. at 234; Mitchell, 530 U.S. at 809. If a direct aid program “does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement,” then it will be deemed constitutional. Id. Where aid is indirect, i.e., where non-governmental actors channel “government aid to religious [institutions] wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge
31

under the Establishment Clause.” Zelman, 536 U.S. at 652. In that circumstance, the law need only be “neutral with respect to religion” and provide aid to “a broad class of citizens.” Id.
As detailed below, whether this Court deems the contract operative at the time of trial “direct” or “indirect” aid, it satisfies both “effects” tests.
1. Iowa’s contract with IFI at the time of trial was permissible as direct aid. a. The district court erred in concluding that the contract results in government indoctrination. i. The applicable test is “actual diversion,” not “pervasively sectarian.”
Justice O’Connor’s concurrence in Mitchell, 530 U.S. at 836-67, joined by Justice Breyer, sets forth the controlling standard for assessing whether a direct aid program “results in government indoctrination.” Columbia Union Coll. v. Oliver, 254 F.3d 496, 504 n.1 (4th Cir. 2001). The opinion emphasizes, as against the plurality, that this element of the test still forbids “actual diversion of [direct] government aid to religious indoctrination,” even when the aid is neutrally distributed. Mitchell, 530 U.S. at 840-44. But it also emphasizes, as against the dissent, that courts may not presume that religious institutions that receive direct aid will “necessarily,” “inescapably,” or “inevitably” divert those funds to pay for “religious indoctrination.” Id. at 850-51 (quoting Meek and Wolman). Justice O’Connor specifically criticized – and joined the plurality in overruling – the
32

reasoning of Meek and Wolman, precisely to the extent they applied the “pervasively sectarian” presumption to this effect. Id. Justice O’Connor added that
a presumption of indoctrination, because it constitutes an absolute bar to the aid in question regardless of the religious [institution’s] ability to separate that aid from its religious mission, constitutes a “flat rule, smacking of antiquated notions of ‘taint,’ [that] would indeed exalt form over substance.” Id. at 858 (quoting Zobrest v. Catalina Hills School Dist., 509 U.S. 1, 13 (1993))(first alteration added). Justice O’Connor replaces this presumption with its opposite, that government officials and employees of religious organizations are presumed to act in “good faith” and comply with program rules against using government funds for religious instruction. Id. at 863; see also id. (“To find that actual diversion will flourish, one must presume bad faith on the part of the religious school officials who report” to government aid monitors). Correspondingly, in order to overcome this presumption in favor of compliance, Establishment Clause “plaintiffs must prove that the aid in question is, or has been, used for religious purposes.” Id. at 857 (emphasis added); see id. at 858. Moreover, even if Establishment Clause plaintiffs can prove “actual diversion” of government aid to religious indoctrination, they must further prove it is more than de minimis. See, e.g., id. at 864 (rejecting evidence of actual diversion as de minimis); see also id. at 861 (rejecting claim that “government
33

must have a failsafe mechanism capable of detecting any instance of diversion”).
Indeed, where, as in Mitchell, a system of safeguards catches and corrects small
instances of actual diversion, that tends to show the system is “properly
functioning” and should not be struck down. Id. at 866 (discussing correction of
purchase of 191 religious books with government funds, totaling less than 1% of
total aid allocation).
The four-Justice plurality opinion by Justice Thomas joined the concurrence
in rejecting the “pervasively sectarian” presumption, but did so for more reasons:
• “its relevance in our precedents is in sharp decline.… [W]e have not struck down an aid program in reliance on this factor since 1985…”
• “the religious nature of a recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government’s secular purpose.…”
• “the inquiry into the recipient’s religious views required by the focus on whether a school is pervasively sectarian is not only unnecessary, but offensive.…”
• “hostility to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow.”
Id. at 826-28. The plurality concluded that “[t]his doctrine, born of bigotry, should
be buried now.” Id at 829.
Thus, the lower court erred in concluding that “the ‘pervasively sectarian’
inquiry…remains the law.” Op.96. Although it correctly concluded that the four-
vote plurality opinion does not suffice alone to defeat the test, id., the court
completely ignored Justices O’Connor’s and Breyer’s rejection of the “pervasively
34

sectarian” test, and their formulation of an inconsistent test in its place for assessing whether “aid results in government indoctrination.” Mitchell, 530 U.S. at 850-51, 857-58. See Columbia Union, 254 F.3d at 503-04.
Indeed, the lower court’s disregard of the Mitchell concurrence was so complete that it began its discussion of the meaning of “pervasively sectarian” by quoting the definition of the term from Hunt v. McNair, 413 U.S. 734 (1973) – the very same language that Justice O’Connor had block-quoted with disapproval as it appeared in Meek. Compare Op.96 (quoting Hunt, 413 U.S. at 743), with Mitchell, 530 U.S. at 850 (quoting Meek v. Pittenger, 421 U.S. 349, 365-66 (1975) (quoting Hunt, 413 U.S. at 743)). Similarly, when the lower concluded that the “pervasively sectarian” character of InnerChange disqualified it from equal access to the same facilities that secular rehabilitation programs would need to function, the court used the very notion of “taint” that Justice O’Connor condemned. Compare Op.108 (IFI’s use of government offices, furniture, and other in-kind aid “is tainted with the impermissible advancement of religion”), with Mitchell, 530 U.S. at 858 (linking “flat rule” of excluding pervasively sectarian groups from government aid with “antiquated notions of ‘taint’”)(quoting Zobrest, 509 U.S. at 13).
ii. The district court’s application of the “pervasively sectarian” presumption illustrates its problems.
35

The application of the “pervasively sectarian” doctrine in this case amounts
to little more than judicial religious stereotyping. It is bad enough that Plaintiffs’
evidence and the court’s findings focused so intensely on PFM’s and IFI’s beliefs,
Op.12-24, rather than exclusively on their conduct in implementing this particular program.8 But worse still, rather than simply rely on PFM’s and IFI’s own account
of their own beliefs, the court shoe-horns them into the category of “Evangelical Christianity” as defined by Plaintiffs’ expert, Professor Sullivan.9 Unsurprisingly,
Plaintiffs’ expert describes a general category of people whose every word and
deed has as its purpose the religious conversion of non-Evangelical Christians to Evangelical Christianity.10 This imagined class of people, in other words, is
presumed incapable of doing anything that does not “result in religious
indoctrination,” so they are disqualified as a class from contracting with the
8 See Mitchell, 530 U.S. at 827-28 (“the religious nature of a recipient should not matter to the constitutional analysis,” and “the inquiry into the recipient’s religious views required by the focus on whether a school is pervasively sectarian is not only unnecessary, but offensive”). 9 Op.13&n.8 (“Prison Fellowship’s own religious commitments can best be characterized as Evangelical Christian in nature”); Op.16 (“As an Evangelical Christian organization, Prison Fellowship shares the predominate characteristics common to Evangelical Christianity”). 10 Op.17 (describing as “paramount” the “duty of every Evangelical Christian to evangelize—that is to spread the good news of their faith and invite others to share the same adult conversion experience.”); id. (“for Evangelical Christians, everything that happens in the world is understood through and interpreted by religious language.”).
36

government to provide rehabilitation services. Mitchell, 530 U.S. at 858 (quoting Zobrest, 509 U.S. at 13).
But the real people who actually run IFI don’t fit this stereotype. Sullivan’s opinion didn’t take them into account at all: she never observed InnerChange in operation, or interviewed any IFI staff members or participating inmates. Apx.221-22. Her uninformed (and so unreliable) opinion that InnerChange is designed simply to convert inmates is directly contradicted by the unequivocal testimony of those who actually operate the program, Apx.303-06, 312, 315-19, 355, and the fact that InnerChange makes accommodation for inmates to practice other faiths, and has graduated inmates of other faiths and of no faith. Apx.216, 218, 235, 295-96. 320-23, 329-30. The court nonetheless concluded that IFI staff relentlessly indoctrinate inmates who enroll in the Program.11 The “pervasively sectarian” inquiry invites precisely this kind of stereotype of “Evangelical Christians” over the reality of law-abiding State and IFI staff.
iii. The current contract passes the “actual diversion” test.
Perhaps more egregious than its application of the “pervasively sectarian” test is the lower court’s failure to apply Justice O’Connor’s superseding test for
11 Op.88 (“Every waking moment in the InnerChange program is devoted to teaching and indoctrinating inmates into the Christian faith.”); Op.75 (“As presented through the InnerChange program, however, these [treatment] classes are also used to indoctrinate InnerChange inmates into the Evangelical Christian faith.”).
37

assessing whether the direct aid “results in government indoctrination.” For all its
length, the court’s opinion still fails to address the facts that are actually relevant:
facts not about who IFI is, but what IFI actually does, and particularly what it does
with government funds. The court discusses no evidence from Plaintiffs, and
certainly makes no finding, proving that the funds paid to IFI under the current
contract—$3.47 per inmate per day, Apx.308-10—were “actually diverted” to pay for indoctrination, least of all at more than de minimis levels.12 Similarly, its
sweeping conclusion that “state funding unquestionably supplants, rather than
merely supplements[,] ‘the regular curricula’ of the InnerChange program,” Op.109, has no evidentiary basis.13
In the absence of such evidence, the presumption of State and IFI officials’
“good faith” in using that money only for secular activities should carry the day.
Mitchell, 530 U.S. at 863-64. But see Op.107 (claiming that, in Nyquist, “the Court did not accept the school’s assurances that public funds would be safeguarded”).14
12 Although the court criticizes the per diem as ineffective to render the aid “indirect,” Op.120-22, it doesn’t find (or even discuss evidence tending to show) that, as direct aid, IFI “actually diverted” even a cent of the per diem to religious worship or instruction. Instead, it falls back on the presumption that an organization as vigorously religious as IFI “inevitably,” “necessarily,” and “inescapably” uses any government money for indoctrination. 13 As the court recognized, Op.109, the “supplement not supplant” factor is neither clearly of constitutional magnitude, nor clear in scope. 14 The court makes the bold assertion that “Nyquist remains the definitive case to which the Supreme Court turns to characterize improper state funding of a religious institution,” Op.122, apparently on the basis that Zelman bothered to
38

But in any event, the State and IFI need not rely on that presumption, because they adduced competent, undisputed evidence—ignored by the court—demonstrating how the per diem avoids funding religious indoctrination. Specifically, the aid covered less than 40% of the direct costs of operating InnerChange at NCF, Op.41, Apx.187-89, 308; and IFI provided certain unmistakably secular services (e.g., computer classes, job training, security assistance). Apx.264-65, 272-74, 340-41, 377-81. IFI submitted detailed breakdowns of its programming hours to DOC and, at DOC’s request, completed a thorough study of its sectarian and non-sectarian programming in 2001. Apx.453-59, 601-13, 1214-20. Each study concluded that at least 40% of InnerChange programming was non-sectarian. Id.
b. The district court erred in concluding that the contract defines beneficiaries by reference to religion.
The Mitchell concurrence explained that an aid program “‘defines its recipients by reference to religion’” if the program “‘creat[es] a financial incentive to undertake religious indoctrination.’” Mitchell, 530 U.S. at 845 (quoting Agostini, 521 U.S. at 231, 234).
Here, the lower court found that “the state and InnerChange provide incentives to inmates to join the program … in the form of [1] better conditions
distinguish it. This only means Nyquist has not been overruled, not that every proposition within it remains good law. Although Plaintiffs might wish it otherwise, the “definitive cases” describing the applicable standards that govern this case are the Mitchell concurrence and Agostini for direct aid, and Zelman for indirect aid—not Nyquist.
39

once associated and reserved for honor unit inmates and [2] an opportunity to complete the required courses of rehabilitation classes before it would be otherwise possible.” Op.114. Both conclusions are erroneous.
First, to the extent the conditions in Unit E may represent a constitutionally significant incentive at all—and they don’t—those conditions are more than offset by the burdensome demands of participation in IFI.
Iowa assigned IFI to Unit E, a former “honor unit,” for security reasons— DOC could keep volunteers out of other units. Apx.284-85. Unit E wasn’t designed as an honor unit; in fact, honor units are not determined by the quality of facilities, but by the designation of DOC. Apx.281-83. Honor units are defined by the privileges given to inmates, and inmates who had been in Unit E before IFI retained those special privileges after moving to another unit. Apx.288, 298-99. The “benefits” of Unit E—communal bathrooms and inmate-controlled doors—are matters of preference. Some of Plaintiffs’ witnesses testified they preferred in-cell bathrooms or had no preference at all. Apx.294, 300. Inmate-controlled doors generate security risks that some inmates may not wish to take.15 Apx.375.
15 The court also found that “inmates in maximum security facilities with attendant high custody scores, who otherwise would not be allowed into the Newton Facility, were able to participate in the InnerChange program based in Unit E.” Op.56. This finding is clearly erroneous. Classification decisions are always within DOC’s discretion; custody scores provide guidelines about which facilities “may be appropriate,” but are not rigid rules. Apx.280, 289-90. DOC
40

Other “benefits” of IFI are available through other DOC programs, and so do not represent a meaningful incentive to join. While more computers are available to inmates in InnerChange than to general population (“GP”) inmates, GP inmates may obtain greater computer access by enrolling in a GED or college course. Apx.212-13, 224-26, 253, 372. IFI computers have no internet access or printing capability. Id. GP inmates taking college classes, like InnerChange inmates, have graduation ceremonies with free food brought in from the outside. Apx.337, 390. GP inmates, like InnerChange inmates, may obtain free phone calls in family emergencies or for treatment-related communication (e.g., family reconciliation). Apx.219, 228-29, 252-53, 267-69, 371. InnerChange inmates, like GP inmates, have limited access to musical instruments. Apx.230-31, 250-52, 334.
Rather than tout these “benefits” of IFI in recruiting sessions, IFI staff focus instead on the difficulty of InnerChange programming and the comforts inmates must give up to enter the program. Apx.339, 398, 346. InnerChange prohibits inmates from having televisions in their cells (GP inmates are permitted TVs); possessing sexually explicit magazines, books or music; and cursing. Apx.205, 207, 249. Inmates may not hold full-time jobs during the Program’s first twelve months. Apx.205, 215, 247-48. Inmates must keep their cells clean and submit to strict inspections of possessions. Apx.232-34. Discipline is strict in the regularly makes exceptions and places inmates with high custody scores in medium and even minimum security facilities. Apx.280.
41

InnerChange unit, and free time is limited. Apx.232-34, 205, 207, 249. Perhaps most significant, inmates must forego their weekday visiting hours, which conflict with InnerChange classes. Inmates are expected to confine visits to weekends, a time when the visiting room is overcrowded. Apx.215, 391-92.
The lower court made much of the family visits given to InnerChange inmates during the Alpha Series, or Family Series. Op.84-85. These findings are clearly erroneous. The record demonstrates that InnerChange inmates actually have fewer family visits than GP inmates. Apx.215, 391-92. For a three-month period, InnerChange inmates may meet with their families on a weeknight as part of the Family Series. Apx.198. They are conducted in large groups with InnerChange counselors, other inmates, and their families. Apx.388. Inmates must spend the short visit working through a set curriculum with their families, and are reprimanded by the InnerChange counselor at the table if they stray from assigned materials. Apx.229, 335-36, 386-88. Inmates must submit to strip searches before and after these meetings. Apx.254, 388. The evidence demonstrates that IFI inmates actually have less time for visits—not more. Apx.215, 391-92.
Second, the lower court erred in concluding that InnerChange speeds up treatment and so leads to earlier parole. Op.70-71, 114.
42

IFI inmates receive the following core correctional treatment programming while in the program: substance abuse, criminal thinking, victim impact, anger management, financial management, and marriage/family/parenting. Apx.195, 238-39. DOC offers inmate more than 50 options for completing treatment in each of these areas (and others): there are multiple treatment programs available at each facility, and DOC will transfer inmates between facilities to help them obtain treatment. Apx.1237-40, 364-67. Most importantly here, inmates can take DOC classes simultaneously, completing as many as three treatment classes in six months. Apx.236-37. Most inmates don’t require more than three treatment classes. Apx.292-93.
InnerChange, by contrast, doesn’t allow for this kind of streamlining. InnerChange inmates must complete a one-month orientation and six months of the program before they begin formal treatment classes. Apx.238-39. Moreover, there is a waiting period to get into InnerChange and an additional waiting period (which may last several months) between the time an inmate arrives at NCF and the time his InnerChange classes begin. Apx.255, see also 374. InnerChange’s substance abuse program is nine months long and does not begin until an inmate has been in InnerChange for 9 months. Apx.259, 266-67, 338, 357. Most substance abuse programs are 3-4 months long. Apx.259. Due to its length, InnerChange can actually delay completion of treatment. Apx.260, 266-67, 286, 357, 338.
43

Moreover, Elizabeth Robinson, Chair of the Parole Board, testified that the Board prefers that treatment be completed immediately prior to release and has in fact instructed DOC not to begin inmate treatment too early. Apx.358-59, 361. Robinson also testified that she looks critically at voluntary inmate treatment, because some inmates sign up for unnecessary classes to try and manipulate the Board. Apx.360, 362.
Thus, the IFI contract does not provide any incentive for aid recipients to undertake religious indoctrination, because it does not offer either improved living conditions or expedited parole.
c. The district court erred in concluding that the contract creates an excessive entanglement with religion.
As the Supreme Court has noted, “[i]nteraction between church and state is inevitable…and [the courts] have always tolerated some level of involvement between the two.” Agostini, 521 U.S. at 233. Hence, “[e]ntanglement must be ‘excessive’ before it runs afoul of the Establishment Clause.” Id. In assessing entanglement here, the Court must consider whether the DOC’s contract with IFI requires: (a) “pervasive monitoring” by DOC, and (b) administrative cooperation between DOC and the provider. Id.
The lower court ignored these considerations, finding instead that “the transformational model employed by InnerChange forecloses any possibility that secular and sectarian aspects of the program may be separated.” Op.125. That is,
44

the court resorts once again to the “pervasively sectarian” shortcut—if a service contractor is “too religious,” it is presumed incapable of keeping government funds from religious use.
But under the controlling test ignored by the court, any “entanglement” between DOC and IFI falls well short of “excessive.” There is no evidence, least of all a finding, that the current contract requires pervasive DOC monitoring. Indeed, the court faults IFI in this section—albeit inaccurately—for lack of monitoring. Op.124 (“[t]here are no adequate safeguards present”). The evidence, however, shows that DOC’s monitoring includes receiving and reviewing regular service invoices from IFI, see Apx.981-1006; staff observation and discussion of IFI activities at NCF, see Apx.257, 277, 279; a budgetary cap strictly limiting DOC funding to a portion of the program, see Apx.187-88, 258; and contractual provisions specifically limiting use of state funds to “non-sectarian” purposes. See, Apx.256-57, 278, 453-59, 658. This strikes the proper constitutional balance and is not “excessive.”
Nor is the level of administrative cooperation here “excessive.” Agostini, 521 U.S. at 233 (administrative cooperation, by itself, is insufficient to create excessive entanglement). While DOC and IFI officials engage in some cooperation—meeting and communicating occasionally about administrative issues—it is no more than necessary to address those issues, which necessarily
45

arise from IFI’s operation in the midst of the DOC’s prison system. See Peck v. Lansing, 148 F.3d 619, 624, 628 (6th Cir. 1998)(entanglement caused by school district’s providing physical therapy to parochial school student at her school was no more than necessary).
2. Iowa contract with InnerChange at the time of trial was permissible as indirect aid. a. The district court erred in concluding that the contract selection process was not neutral.
The court held that the RFP process lacked “neutrality” because IFI “was the only real contender in the bid process,” which was “gerrymandered…in order to assure that the InnerChange program would come to Iowa.” Op.111-12. This is error, as the State could have waived the bidding process entirely consistent with the demands of neutrality, for the same reason Wisconsin did in FFRF v. McCallum: “because [the faith-based] program has such attractive features from a purely secular standpoint, such as the length of the program, … the state was eager to have it on its menu of [rehabilitation treatment] choices.” 324 F.3d 880, 883 (7th Cir. 2003). Moreover, IFI was not the only real contender in the bid process for the contract in effect at the time of trial—IFI simply won because it offered the most services at the lowest price. Op.39. Appellants also adopt Iowa’s arguments on this point. FRAP 28(i).
46

b. The district court erred in concluding that the contract does not provide benefits to a broad class of beneficiaries.
Although it is undisputed that IFI doesn’t require inmates to be or become Christian to complete the Program, the lower court still held that InnerChange does not provide benefits to a “broad class of individual recipients defined without regard to religion,” Zelman, 536 U.S. at 662. The court claimed that, “[i]n practice, the intensive religious content of the InnerChange program is a substantial disincentive to joining for persons of other faiths, or those professing no faith.” Op.120.
This argument proves too much. Those who might be deterred from participating in IFI because of disagreement with its religious beliefs are in the same situation as those parents in Cleveland who might be deterred from sending their children to Catholic schools with the voucher funding at issue in Zelman because of disagreement with the schools’ religious beliefs. This element of the test doesn’t require participating religious programs to reshape themselves so that they are equally appealing to people of all faiths; it only requires them to offer their services to all potential beneficiaries, regardless of their faith, and it is undisputed that IFI does that (and that non-Christians have completed the Program). Indeed, the distinctive religious character of IFI (or the Zelman Catholic schools) is precisely one of the things that makes the inmates’ choice a meaningful one. See
47

McCallum, 324 F.3d at 884 (“It is a misunderstanding of freedom…to suppose that a choice is not free when the objects between which the chooser must choose are not equally attractive to him.”).
c. The district court erred in concluding that state funds were not directed to InnerChange as a result of genuinely independent private choice.
The lower court concluded that the InnerChange Program wasn’t a system of true private choice for two reasons, both of which are erroneous.
First, it found that “there are not alternative, similar programs offered to Iowa inmates who are not interested in the InnerChange religious programming, but who also desire to meet their treatment requirements in the most timely way, be part of a residential community setting, and avail themselves of an intensive post-release program.” Op.120-21 (emphasis added).16 But the law requires much less similarity among treatment alternatives than the italicized language suggests. In other words, by ratcheting up the similarity requirements, the court completely ignored the huge menu of alternative secular treatment options available. DOC provides more than one hundred other treatment programs. Apx.1237-40. It runs six therapeutic communities. Apx.201. It offers the KEYS program, an intensive post-release alternative to InnerChange. Apx.272-73, 275-76, 331. In fact,
16 Applying this stringent similarity test, the court concluded there were only two “therapeutic community” alternatives, and then rejected them as insufficient because they were limited to certain types of inmates. Op.71-72, 119.
48

enrolling in InnerChange can actually delay the completion of treatment. Apx.260, 266-67, 286, 357, 338.
For all the reasons why these alternatives are similar enough not to incentivize inmates to choose InnerChange, see supra Section III.A.1.b., they are also similar enough to InnerChange to represent a genuine alternative. See also McCallum, 324 F.3d at 883 (three-month and nine-month halfway-house programs are sufficiently comparable to allow “true private choice”).
Second, the court faulted the per diem for not following inmates to whatever alternative treatment programs they choose. Op.120. But that overlooks the fact that IFI’s access to contract funds still depends entirely on inmates’ decision to choose InnerChange as their rehabilitation service provider: if inmates participate in InnerChange, IFI gets the money; if they don’t, it doesn’t. The fact that the money doesn’t also go to an alternative provider when an inmate chooses that alternative doesn’t affect whether the inmate’s private choice is “genuine” or “independent,” particularly where the decision has no financial impact on the inmate.17
17 As the district court acknowledged, the fact that the aid went straight from Iowa to InnerChange, rather than through the hands of individual inmates, has no constitutional significance. Op.119&n.44 (“What needs to be shown is simply that an inmate’s private, genuine choice directs the aid to the provider.”)(citing McCallum, 324 F.3d at 882).
49

Therefore, the per diem system under the current contract represents a system of true private choice, and the aid should be analyzed as “indirect.” Because the aid is also “neutral” and offered to a “broad class of beneficiaries defined without regard to religion,” it complies with the Establishment Clause.
B. The District Court Erred in Finding That the Contracts Prior to the Time of Trial Had the Impermissible Effect of Advancing Religion. 1. This case is moot with respect to past contracts for rehabilitation services between IFI and DOC.
In general, civil rights plaintiffs under Section 1983 may seek three forms of relief: damages, injunction, and declaration. See, e.g., Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir. 2004). Because none of these is available here as against any iterations of the IFI contract prior to the one operative at trial, the case is moot as to those prior iterations.
Damages relief is generally available for individual or associational Establishment Clause plaintiffs, and Plaintiffs originally sought that relief. Apx.178. But although such relief would be available to remedy actual harms caused by completed action—such as any prior IFI contracts that are no longer operative and that may have violated the Establishment Clause—Plaintiffs chose to drop their damages claim. Apx.179.
Injunctive relief is prospective, and is therefore unavailable as a means to correct wholly completed action. See Harmon v. Kansas City, 197 F.3d 321, 327
50

(8th Cir. 1999)(“mere fact that injurious activity took place in the past does nothing to convey standing to seek injunctive relief against future constitutional violations.”). As discussed below, the injunctive relief of restitution, though calculated based on past conduct, is no exception to this rule. Accordingly, injunctive relief is unavailable as a remedy for challenges to any version of the IFI contract prior to the one operative at trial.
Finally, declaratory relief is unavailable in the absence of any viable claim for compensatory or injunctive relief. Midwest Farmworker v. Dept. of Labor, 200 F.3d 1198, 1201 (8th Cir. 2001).
Because none of the three potentially available forms of relief are available for any claim that prior IFI contracts violated the Establishment Clause, this court should reject any such claim as moot.
2. Even if the case were not moot with respect to past contracts, those contracts did not violate the Establishment Clause.
If this Court were nonetheless to reach Plaintiffs’ apparent constitutional challenge to earlier IFI contracts that are no longer in effect, the Court should still reject that challenge.
Before the per diem payment system was instituted as part of the current IFI contract, there is no arguable claim that the IFI contract instituted a system of indirect aid, so the direct aid standards apply. See supra Section III.A. (describing applicable standards for direct and indirect aid). Under two of the three direct aid
51

factors—whether the aid defines recipients by reference to religion or creates excessive entanglement—the facts and analysis are essentially the same as above. See supra Section III.A.1.b.&c. Under the third—whether the aid results in government indoctrination—relevant facts are different, but the result is the same: there is no violation.
The lion’s share of State funds paid under prior contracts went to staff salaries for time allocated to “nonsectarian” tasks. The court summarized these allocations briefly and then described them (albeit obliquely) as “a well-defined system for the coding of sectarian versus non-sectarian expenses.” Op.47 (“a welldefined system for the coding of sectarian versus non-sectarian expenses, other than salaries, at the Newton InnerChange Program was not in place.”). And there is no evidence of “actual diversion” of the government funds spent on salaries.
As to out-of-pocket expenses, the parties agree that the costs of all photocopies (up to 40,000 per month), land and cell phones, internet, computer repair, computer hardware and software, audio equipment, blank videotapes, postage, letterhead, envelopes, and other office supplies were coded as “nonsectarian” and charged to Iowa. Op.44. But, importantly, the court didn’t find what portion, if any, of these goods were actually applied toward religious indoctrination. Under the Mitchell concurrence, this is the Plaintiffs’ burden to prove, and they failed to meet it. Instead, they (and the court below) mistakenly
52

relied on the discredited presumption that a “pervasively sectarian” organization “necessarily,” “inevitably,” or “inescapably” diverts government funds to pay for religious indoctrination. Mitchell, 530 U.S. at 850-51.
Although there is some evidence of funds “actually diverted” to religious indoctrination under a prior contract, those diversions were de minimis. Specifically, the court found that, before the per diem system, Iowa was billed for certain religious articles, but notably omits the amounts. The printing of brochures with religious content to recruit volunteers, Op.44-45, cost $600. Apx.1243. The religious key rings used as graduation gifts, Op.46-47, cost $63.96. Apx.1245, 1248. The religious bookmarks used as volunteer gifts, Op.47, cost $23.85. Apx. 1249. The copyright licenses to use religious music, Op.47, cost $203. Apx.1246. The cost of the subscription to a monthly religious booklet, Op.47, is not in evidence.18
In a program whose total budget hovers around $600,000.00 annually, for which Iowa’s portion hovers around $200,000, if these diversions are not de minimis, then nothing ever could be. Indeed, the fact that the court bothered to
18 The fact that IFI uses state funds to pay for meals at volunteer appreciation events doesn’t represent “actual diversion” toward religious indoctrination, simply because some of those volunteers “includ[e] those who lead Bible studies.” Op.47. The court does not find as much, but suggests it by including these meals among out-of-pockets spent on religious items. Id.
53

emphasize such trivial diversions suggests how little evidence of “actual diversion”
there was.
IV. EVEN IF THE COURT DID NOT ERR IN FINDING AN ESTABLISHMENT CLAUSE VIOLATION, THE COURT DID ERR IN ITS REMEDY. A. The District Court Erred in Ordering InnerChange and Prison Fellowship to Repay State Funds Already Spent to Provide Rehabilitation Services to Inmates. In ordering PFM and IFI to repay over $1,500,000 as equitable restitution to
Iowa, the court severely misbalanced the equities. Moreover, restitution is
unavailable as a remedy for private Establishment Clause plaintiffs.
1. If restitution is available to private Establishment Clause plaintiffs, it should not be awarded on these facts.
The court failed to balance the equities properly by giving some factors too
much weight, giving others too little weight, and ignoring some altogether. These
errors are subject to de novo review and should be overturned. See Brown v. Aventis, 341 F.3d 822, 826 (8th Cir. 2003)(availability of equitable remedies
subject to de novo review). See also Correa v. Cruisers, 298 F.3d 13, 34 (1st Cir.
2002)(abuse of discretion when “relevant factor deserving of significant weight is
overlooked”; “improper factor is accorded significant weight”; or “court considers
the appropriate mix of factors, but commits a palpable error of judgment in
calibrating the decision scales.”).
a. The district court erred by misapplying those equitable factors it considered.
54

i. Reasonable reliance. Lemon v. Kurtzman, 411 U.S. 192 (1973)(“Lemon II”), and Roemer v. Board of Public Works, 426 U.S. 736 (1976), should guide this Court’s analysis of reasonable reliance. In Lemon II, the Court held that religious schools could be paid for expenses incurred before the program at issue was declared unconstitutional. Lemon II, 411 U.S. at 208. Emphasizing the lack of predictability under Establishment Clause jurisprudence, the Court held that the schools’ reliance on the contract was justified. Lemon II, 411 U.S. at 206-07. The Court rejected restitution because there was no showing that defendants “acted in bad faith or that they relied on a plainly unlawful statute.” Id.19 In Roemer, the Court refused to order restitution of payments already made under a grant program benefiting religious colleges. Roemer, 426 U.S. at 767&n.23. The Court found the case for reasonable reliance stronger than in Lemon II: the colleges in Lemon II relied not as heavily because they “had not yet received the funds in question,” and not as reasonably because “a suit had been filed prior to the time the reliance occurred.” Id.
19 Outside Establishment Clause cases, courts have similarly refused to order restitution absent a showing of bad faith. See, e.g., Texaco Puerto Rico v. Dept. of Consumer Affairs, 60 F.3d 867 (1st Cir. 1995); Moss v. Civil Aeronautics Bd., 521 F.2d 298, 314 (D.C. Cir. 1975).
55

Under these precedents, IFI’s reliance was reasonable, and restitution should be denied. As in Roemer, reliance is heavier, because payments are not just anticipated, but already made, to IFI, and more reasonable, because this lawsuit didn’t precede the Program. And as in Lemon II, the Establishment Clause law is complex, and its application to this case unpredictable (as the court below acknowledged, Op.135), so the Program could not have been “plainly unlawful.” And as in both precedents, there is no showing of “bad faith.” Indeed, the court found that the contract here had a legitimate and predominately secular (rather than sham religious) purpose. Op.95.
The court nonetheless rejected the reasonable reliance defense, based mainly on “the degree of knowledge of the Defendants about the risk associated with the program.” Op.138. It cited a Texas opinion in support, but it was issued after this contract began, striking down a different program, in a state where InnerChange presently operates without legal incident. The court also cites a contrary legal opinion from the California DOC, but that state’s difference of opinion with IFI, Iowa DOC, and their respective lawyers, doesn’t remotely approach the higher level of risk that was insufficient for restitution in Lemon II, where a lawsuit “was plain from the outset.” Id. at 207.
ii. Financial hardship.
56

The court rejected IFI’s financial hardship defense because IFI is affiliated with PFM, and PFM revenues exceed $50 million annually. Op.133. But the court failed to consider PFM’s assets and liabilities. Id. Without this information, it couldn’t fairly determine whether it would be hardship for PFM to pay over 3% of its revenues to satisfy the restitution order. The court also articulates no theory of liability explaining why PFM should be responsible for paying a restitution order that runs against IFI. There is no ownership relationship or corporate veil to pierce.
b. The district court erred by failing to consider equitable factors that militate against restitution. i. Unjust enrichment.
Restitution is premised on the notion, central to equity jurisprudence, that no one should be unjustly enriched. RESTATEMENT OF RESTITUTION § 1. See also Douglas Laycock, The Scope and Significance of Restitution, 67 TEX. L. REV. 1277, 1279 (1989)(“‘Restitution’ means recovery based on and measured by unjust enrichment.”) State ex rel. Palmer v. Unisys, 637 N.W.2d 142, 154 (Iowa 2001)(“[t]he doctrine of unjust enrichment is based on the principle that a party should not be permitted to be unjustly enriched at the expense of another or receive…benefits without paying just compensation.”)(citation omitted) .
The court turned this doctrine on its head by issuing a restitution order unjustly enriching Iowa at IFI’s expense. Iowa admits it already received good
57

value for its purchase of IFI rehabilitation services. Apx.187-88, 263-65, 377-81. But the court’s order would allow Iowa to keep the undisputed benefit of the rehabilitation services without paying the “just compensation” provided for in the contract, even though Iowa agrees that restitution would be unjust. And it makes restitution a one-way street that forces IFI to disgorge funds without making Iowa restore to IFI the additional $2 million IFI invested (without reimbursement) in the Program. Op.40-41.
ii. Quantum meruit. Quantum meruit compensates a party who provided beneficial services to another without a valid contract: “For breach of an implied-in-fact contract, the injured party is entitled to quantum meruit—‘the reasonable value of the services provided and the market value of the materials furnished.’” Scott v. Grinnell Mut. Reinsurance, 653 N.W.2d 556, 562 (Iowa 2002). Here, even if IFI’s contract with DOC is invalid, IFI is entitled to “the reasonable value of the [rehabilitation] services provided,” and Iowa has repeatedly emphasized that the value of those services was high, even exceeding their cost to Iowa. Apx.263-65, 270-71, 27374, 370, 671, 1223-36. Therefore, the amounts paid under the contract should remain with IFI or, at a minimum, be set off against IFI’s costs in providing the services.
iii. In pari delicto.
58

When a contract is illegal, and both parties to the contract are at fault for its illegality, courts “will ordinarily leave [the parties] where it finds them, whether the contract is executory or executed, refusing relief to both.” Mlynarik v. Bergantzel, 675 N.W.2d 584, 587 (Iowa 2004). Here, assuming the contract between DOC and IFI is illegal, both parties would be at fault, and the court should leave the parties where it found them, not grant Iowa a windfall.
iv. Public policy. Public policy considerations also preclude restitution. If this remedy stands, both religious service providers and governments will be broadly deterred from entering into contracts, regardless of the terms. See Lemon II, 411 U.S. at 207-08 (if restitution were common, providers would have to “stay their hands until newly enacted state programs are ‘ratified’ by the federal courts, or risk draconian, retrospective decrees should the legislation fall.”). Even a very small risk of such a crushing remedy is enough to create this chilling effect, particularly in light of the inherent uncertainties of Establishment Clause law. Id. at 206-07.
v. Redundancy. Restitution here is also inequitable because it is cumulative. Unlike compensatory restitution—which “focuses on a plaintiff’s losses and aims to recover the harm done to him”—equitable restitution instead seeks to “remov[e] [the Defendant’s] incentive to perform the wrongful act again.” Knieriem v.
59

Group Health Plan, 434 F.3d 1058, 1061 (8th Cir. 2006). But where the court has already issued a prohibitory injunction (and a broad one at that), there is no need to pile on by issuing another injunction to further deter the already-prohibited conduct.
In sum, the lower court ignored a wide range of considerations all pointing to the same conclusion—forcing IFI to repay Iowa for valuable services it already rendered Iowa is inequitable under the circumstances.
2. Restitution is categorically unavailable to private plaintiffs as a remedy for Establishment Clause violations.
The court’s holding that restitution is a remedy available to private Establishment Clause plaintiffs rests on the slender reed of the Seventh Circuit’s recent, sharply divided decision in Laskowski v. Spellings, 443 F.3d 930 (7th Cir.), clarified upon pet. for reh’g, 456 F.3d 702 (7th Cir. 2006). Before Laskowski, no court had ever stretched standing so far as to grant private plaintiffs qui tam-like authority to force private parties to reimburse the government for its Establishment Clause violations. This Court should reject the lower court’s uncritical adoption of Laskowski for three reasons.
First, it is well-established that “a plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the Earth v. Laidlaw, 528 U.S. 167, 185 (2000). But plaintiffs get no benefit of their own from this form of relief. See Great-West Life v. Knudson, 534 U.S. 204, 214 (2002)(equitable
60

restitution “must seek not to impose personal liability on the defendant, but to
restore to the plaintiff particular funds or property in the defendant’s
possession.”)(emphasis added). As Judge Sykes’ forceful dissent in Laskowki
explains, restitution “is a private law equitable doctrine that orders liability and
remedies between private individuals based on unjust enrichment; it has no
application in a suit by taxpayers raising an Establishment Clause challenge” to
government appropriations. Laskowski, 443 F.3d at 941 (emphasis added). “The
taxpayers’ standing to pursue their Establishment Clause challenge is now based
on – what? A common law claim against [a private recipient of state funds] for
unjust enrichment based on the government’s alleged Establishment Clause
violation?” Id. at 943. “Such a claim is unknown to the law.” Id.20
20 The non-taxpayer Plaintiffs also lack Article III standing to seek restitution to the public fisc of monies paid to InnerChange. The “smoker standing” Plaintiffs do not, by virtue of having bought tobacco products, have standing to challenge how Iowa spends money received from tobacco settlements. Telephone Fund Plaintiffs lack standing to challenge how Iowa uses the profits Iowa makes from selling telephone service to prisoners. IOWA ADMIN. CODE § 201-20.20(2). Although these profits are to be used “for the benefit of inmates,” IOWA ADMIN. CODE § 904-508A, as long as prisoners’ ability to use deposits on their behalf to make telephone calls remains unaffected, Telephone Fund Plaintiffs lack any concrete injury. See Young America v. Affiliated Computer Servs., 424 F.3d 840, 843 (8th Cir. 2005). And Prisoner Plaintiffs lack standing to complain about the source of funds for the InnerChange program—their interest is in the conditions of their confinement alone. With respect to Iowa’s funding decisions, these Plaintiffs therefore raise only impermissible “generalized grievance[s].” DaimlerChrysler, 126 S.Ct. at 1865.
61

Second, allowing Establishment Clause plaintiffs to sue private parties for restitution would dramatically expand the narrow exception of Flast v. Cohen, 392 U.S. 83 (1968), to the general rule against taxpayer standing. Flast didn’t premise standing on “injuries to the public fisc” or on “vindicating losses sustained by the Treasury.” Laskowski, 443 F.3d at 943. Instead, Flast merely authorizes “Establishment Clause challenges to actions by Congress under the taxing and spending power of Article I, Section 8 for the purpose of halting the unconstitutional exercise of that power.” Id. (emphasis added). See also DaimlerChrysler v. Cuno, 126 S.Ct. 1854, 1865 (2006)(re-affirming that taxpayer standing exists only to pursue “an injunction against” the “extract[ion] and spen[ding] of tax money in aid of religion.”). Here, the restitution order halts no exercise of Iowa’s taxing and spending power—money was already “extract[ed] and spen[t].” Thus, ordering restitution of funds from a private party extends well beyond Flast’s limited purpose.
Finally, allowing private plaintiffs to seek restitution for the government violates separation-of-powers and federalism principles by taking the discretion to seek reimbursement away from the executive and giving it to the judiciary and those it appoints as private attorneys general. Political branches possess unreviewable discretion to determine whether to seek remedial action against private parties in matters affecting the public fisc. See Heckler v. Chaney, 470
62

U.S. 821, 831-32 (1985). This rule is grounded in separation-of-powers principles, which courts must respect. See id. (comparing agency’s refusal to seek remedy from private party to “decision of a prosecutor in the Executive Branch not to indict”); U.S. v. Standard Oil, 332 U.S. 301, 314-15 (1947)(political branches, not courts, have authority to “secur[e] the treasury or the government against financial losses, including requiring reimbursement for injuries.”). Here, Iowa exercised its discretion not to seek reimbursement from IFI, recognizing it had received value for IFI’s services. Apx.377-81. But the lower court, through judicial fiat, transferred that discretion from Iowa’s political branches to private plaintiffs.
B. The District Court Erred in Its Award of Prohibitory Injunctive Relief. 1. The district court erred in forever banning InnerChange from operating within the Iowa prison system.
Courts must narrowly tailor every injunction, as a court is “limited by the requirement that it model [its] judgment[] to fit the exigencies of the particular case.” ES Development v. RWM Enterprises, 939 F.2d 547, 558 (8th Cir. 1991)(quotations omitted). Ignoring this requirement, the court issued the broadest possible prohibitory injunction: banning InnerChange from ever contracting with Iowa for paid services, no matter the terms. Op.128. Consistent with the “pervasively sectarian” doctrine it enforces, this overbroad order represents an “absolute bar to the aid in question regardless of the [IFI’s] ability to separate that
63

aid from its religious mission,” and therefore “constitutes a ‘flat rule, smacking of antiquated notions of “taint,” [that] would indeed exalt form over substance.’” Mitchell, 530 U.S. at 858. The court abused its discretion by preferring this “absolute bar” to the narrower remedy of enjoining the current contract, and perhaps any future contract that similarly violated the Establishment Clause.
2. The district court erred in ordering the immediate cessation of payments to InnerChange.
The court also overreached by prohibiting Iowa from paying IFI for services rendered before the contract was invalidated. Op.133-34. Denying InnerChange payment for services already rendered is inequitable for all the same reasons it would be inequitable to force InnerChange to disgorge state funds already spent on providing Iowa valuable rehabilitation services. Indeed, InnerChange’s situation is identical to Lemon II, 411 U.S. at 201-08, where the Court refused to block payments for services already rendered under a contract held unconstitutional. The lower court’s citation to Cathedral Academy is also inapposite. Op.131-32. That case involved no contractual reliance, but instead a legislative attempt to circumvent a court decision by enacting a system to provide payments to religious entities that a court had already found unlawful. Id. No circumvention exists here.
CONCLUSION The decision below should be reversed and judgment entered for Defendants-Appellants.
64

Dated: September 13, 2006

THE BECKET FUND FOR RELIGIOUS LIBERTY
By: Kevin J. Hasson, Esq. Anthony R. Picarello, Jr., Esq. * Derek L. Gaubatz, Esq. Eric C. Rassbach, Esq. Lori E. Halstead, Esq. 1350 Connecticut Avenue, NW, Suite 605 Washington, DC 20036 Phone: (202) 955-0095 Fax: (202) 955-0090
Ashley L. Taylor, Jr., Esq. Anthony F. Troy, Esq. Robert A. Angle, Esq. Megan C. Rahman, Esq. Michael E. Lacy, Esq. Troutman Sanders, LLP 1001 Haxall Point Richmond, VA 23219 Phone: (804) 697-1200 Fax: (804) 697-1339
* Counsel of Record
Attorneys for Defendants-Appellants Prison Fellowship Ministries, Inc. and InnerChange Freedom Initiative, Inc.

65

CERTIFICATE OF COMPLIANCE I hereby certify that pursuant to FED. R. APP. P. 32(a)(7)(C), the foregoing Appellants’ Brief is proportionally spaced, has a typeface of 14 points or more, and contains 13,910 words, as calculated by Microsoft Word 2003, the word processor used in its preparation.

Dated: September 13, 2006

Anthony R. Picarello, Jr.

66

CERTIFICATE OF SERVICE

I, Anthony R. Picarello, Jr., attorney for Defendants-Appellants, hereby

certify that on the 13th day of September, 2006, two (2) true and correct copies of

the Brief of Defendants-Appellants Prison Fellowship Ministries and InnerChange

Freedom Initiative were served upon the following counsel by overnight DHL

delivery service:

Dean Stowers Rosenberg Law Firm 505 Fifth Avenue 1010 Insurance Exchange Building Des Moines, IA 50309
Ayesha Khan Richard B. Katskee Alex J. Luchenitser Heather L. Weaver Americans United for Separation of
Church and State 518 C Street, N.E. Washington, DC 20002

H. Loraine Wallace Gordon Eugene Allen Attorney General’s Office Hoover Building Second Floor Des Moines, IA 50319-0001

Dated: September 13, 2006

Anthony R. Picarello, Jr. Counsel of Record

67

 
 Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 1 of 38
TERMED,LEADTR,PROTO
U.S. District Court Southern District of Iowa (Central) CIVIL DOCKET FOR CASE #: 4:03−cv−90074−RP−TJS

Americans United, et al v. Prison Fellowship, et al Assigned to: Senior Judge Robert W. Pratt Referred to: Magistrate Judge Thomas J. Shields Demand: $0 Case in other court: 8th CCA, 06−02741 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 02/12/2003 Date Terminated: 06/05/2006 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Americans United for Separation of Church and State

represented by Alex J Luchenitser AMERICANS UNITED 518 C ST NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: luchenitser@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dean A Stowers STOWERS LAW FIRM West Glen Town Center The Hub Building, Suite 130 650 South Prairie View Drive West Des Moines, IA 50266 515−224−7446 Fax: 515−225−6215 Email: dean@stowerslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Lynn Weaver Americans United 518 C STREET NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: weaver@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard B Katskee AMERICANS UNITED 518 C ST NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: katskee@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jeannette Rose Americans United 518 C STREET NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: rose@au.org TERMINATED: 02/23/2007

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 2 of 38

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ayesha N Khan AMERICANS UNITED 518 C ST NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: akhan@au.org

Plaintiff Carol Delp

represented by Alex J Luchenitser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dean A Stowers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Lynn Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jeannette Rose (See above for address) TERMINATED: 02/23/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ayesha N Khan (See above for address)

Plaintiff Ardene McKeag

represented by Alex J Luchenitser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dean A Stowers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Lynn Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jeannette Rose (See above for address) TERMINATED: 02/23/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ayesha N Khan (See above for address)

Plaintiff Dorothy Redd

represented by

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 3 of 38

Alex J Luchenitser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dean A Stowers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Lynn Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jeannette Rose (See above for address) TERMINATED: 02/23/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ayesha N Khan (See above for address)

Plaintiff Sandra Sobotka

represented by Alex J Luchenitser 518 C ST NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: luchenitser@au.org LEAD ATTORNEY

Heather Lynn Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jeannette Rose (See above for address) TERMINATED: 02/23/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Bobby Shelton (Plaintiff in member case 4:03−cv−90101) also known as Bilal Shukr

represented by Alex J Luchenitser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jerry Ashburn (Plaintiff in member case 4:02−cv−90447)

represented by Alex J Luchenitser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ayesha N Khan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dean A Stowers

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 4 of 38
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Prison Fellowship Ministries (Also, defendant in member case 4:02−cv−90447)

represented by Ashley L Taylor , JR TROUTMAN SANDERS LLP 1111 EAST MAIN STREET PO BOX 1122 RICHMOND, VA 23218−1122 804 697 1286 Fax: 804 698 6018 Email: ashley.taylor@troutmansanders.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin C Newsom ALABAMA ATTORNEY GENERAL 11 SOUTH UNION STREET MONTGOMERY, AL 36130 334/242−7401 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Edward Lacy Troutman Sanders LLP 1001 Haxall Point P O Box 1122 Richmond, VA 23219 804 697 1326 Fax: 804 698 6061 Email: michael.lacy@troutmansanders.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter A Gilbert TROUTMAN SANDERS LLP 1111 EAST MAIN STREET PO BOX 1122 RICHMOND, VA 23218−1122 804 697 1284 Fax: 804 698 5144 Email: peter.gilbert@troutmansanders.com TERMINATED: 11/15/2005 LEAD ATTORNEY
Robert A Angle TROUTMAN SANDERS LLP 1111 EAST MAIN STREET PO BOX 1122 RICHMOND, VA 23218−1122 804 697 1246 Fax: 804 698 5124 Email: robert.angle@troutmansanders.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony F Troy TROUTMAN SANDERS LLP 1111 EAST MAIN STREET PO BOX 1122 RICHMOND, VA 23218−1122

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 5 of 38

804 697 1318 Fax: 804 698 5162 Email: tony.troy@troutmansanders.com ATTORNEY TO BE NOTICED

Brent R Appel Acting Judge, 7/1/08 (Per Wandro Firm) TERMINATED: 07/01/2008

George A Somerville TROUTMAN SANDERS LLP PO BOX 1122 RICHMOND, VA 23218−1122 Fax: 8046986018 ATTORNEY TO BE NOTICED

H Loraine Wallace IOWA ATTORNEY GENERAL −− Des Moines 1305 E WALNUT STREET DES MOINES, IA 50319 515 281 6670 Fax: 515 281 4902 Email: lwallac@ag.state.ia.us ATTORNEY TO BE NOTICED

Megan Conway Rahman TROUTMAN SANDERS LLP 1001 HAXALL POINT (23219) PO BOX 1122 RICHMOND, VA 23218−1122 804 697 1374 Fax: 804 698 5178 Email: megan.rahman@troutmansanders.com ATTORNEY TO BE NOTICED

Defendant
Innerchange Freedom Intiative Program Sued as: Innerchange Freedom Initiative, (also defendant in member case 4:02−cv−90447)

represented by Ashley L Taylor , JR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gordon E Allen DRAKE UNIVERSITY LEGAL CLINIC 2400 UNIVERSITY AVE DES MOINES, IA 50311−4505 515 271 2773 Fax: 515 271 4000 Email: allen.gordy@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin C Newsom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter A Gilbert (See above for address) TERMINATED: 11/15/2005 LEAD ATTORNEY

Robert A Angle

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 6 of 38

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony F Troy (See above for address)

Brent R Appel (See above for address) TERMINATED: 07/01/2008

George A Somerville (See above for address)

H Loraine Wallace (See above for address) ATTORNEY TO BE NOTICED

Megan Conway Rahman (See above for address)

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Terry Mapes in his official capacity as Warden of the Newton Correctional Facility and in his individual capacity (and defendant in member case 4:02−cv−90447, sued as Terry D. Mapes)`

represented by Gordon E Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Walter Kautzky Sued as: Walter "Kip" Kautzky, (Also defendant in member case 4:03−cv−90101, named as W.L. Kautzky) TERMINATED: 07/28/2005

represented by Gordon E Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant
John Baldwin in his official capacity as Acting Director of the Iowa Department of Corrections and in his individual capacity (Also, defendant in member case 4:02−cv−90447)

represented by Gordon E Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
H Loraine Wallace (See above for address)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 7 of 38

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Iowa Department of Corrections Sued as: John Doe, in his official capacity as Director of the Iowa Department of Corrections and in his individual capacity Filed now under Gary Maynard TERMINATED: 04/18/2003

represented by Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Haywood Belle in official capacity as member of Iowa Board of Corrections and in individual capacity (Also, defendant in member case 4:02−cv−90447)

represented by Gordon E Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Frances Colston in official capacity and as member of the Iowa Board of Corrections and in individual capacity (Also, defendant in member case 4:02−cv−90447) TERMINATED: 07/28/2005

represented by Gordon E Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robyn Mills in official capacity as member of the Iowa Board of Corrections and in individual capacity (Also, defendant in member case 4:02−cv−90447)

represented by Gordon E Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 8 of 38

Arthur Neu in official capacity as member of hte Iowa Board of Corrections and in individual capacity (Also, defendant in member case 4:02−cv−90447)

represented by Gordon E Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Suellen Overton in official capacity as member of the Iowa Board of Corrections and in individual capacity (Also, defendant in member case 4:02−cv−90447) TERMINATED: 07/28/2005

represented by Gordon E Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Walter Reed, Jr in official capacity as member of the Iowa Board of Corrections and in individual capacity (Also, defendant in member case 4:02−cv−90447) TERMINATED: 07/28/2005

represented by Gordon E Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant
Donald Tietz in official capacity as member of the Iowa Board of Corrections and in individual capacity (Also, defendant in member case 4:02−cv−90447) TERMINATED: 07/28/2005

represented by Gordon E Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Defendant Gary Maynard

represented by Gordon E Allen (See above for address)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 9 of 38

LEAD ATTORNEY ATTORNEY TO BE NOTICED

H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Edward Lacy (See above for address) ATTORNEY TO BE NOTICED

Movant
Christopher Lujan TERMINATED: 10/13/2004

represented by Christopher Lujan 0808589 Anamosa State Penitentiary 406 North High Street P.O. Box 10 Anamosa, IA 52205−0010 PRO SE

Date Filed 03/10/2010 02/18/2010 02/08/2010 08/22/2008 08/06/2008
08/05/2008
07/17/2008
06/19/2008

# Docket Text
411 RECEIPT FOR EXHIBITS AND PERMISSION TO DESTROY by Alex J Luchenitser attorney for plaintiffs − the books and dvds only will be withdrawn by local counsel (427−462) and the exhibit binders only can be destroyed (1−426 and 463 through 474) (ljf, ) (Entered: 03/12/2010)
410 RECEIPT FOR EXHIBITS; Fed−Ex defendant's exhibits to atty Michael Edward Lacy this date (ljf, ) (Entered: 02/18/2010)
409 EXHIBIT WITHDRAWAL LETTER to attorneys of record; Withdrawal of Exhibits due by 3/10/2010. (Attachments: # 1 receipt) (ljf, ) (Entered: 02/08/2010)
408 ORDER granting 406 Motion for Settlement/Settlement Conference. Signed by Chief Judge Robert W. Pratt on 8/22/2008. (fm) (Entered: 08/22/2008)
407 MOTION REFERRAL − NO DOCUMENT − 406 Joint MOTION for Settlement/Settlement Conference (Joint Motion/Stipulation By All Parties for Approval of Settlement of Attorney's Fees, Costs, and Expenses; and Proposed Order)Joint MOTION for Settlement/Settlement Conference (Joint Motion/Stipulation By All Parties for Approval of Settlement of Attorney's Fees, Costs, and Expenses; and Proposed Order)Joint MOTION for Settlement/Settlement Conference (Joint Motion/Stipulation By All Parties for Approval of Settlement of Attorney's Fees, Costs, and Expenses; and Proposed Order) Motions referred to Robert W. Pratt. (bp, ) (Entered: 08/06/2008)
406 Joint MOTION for Settlement/Settlement Conference (Joint Motion/Stipulation By All Parties for Approval of Settlement of Attorney's Fees, Costs, and Expenses; and Proposed Order) Motions referred to Thomas J. Shields. by Bobby Shelton, Jerry Dean Ashburn, Robyn Mills, Arthur Neu, Sandra Sobotka, Americans United for Separation of Church and State, Prison Fellowship Ministries, Carol Delp, Ardene McKeag, Dorothy Redd, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin. Responses due by 8/25/2008 (Luchenitser, Alex) (Entered: 08/05/2008)
405 STIPULATION (Certification By All Parties Re Settlement Re Attorney's Fees, Costs, and Expenses) by Jerry Dean Ashburn, Robyn Mills, Arthur Neu, Americans United for Separation of Church and State, Prison Fellowship Ministries, Carol Delp, Ardene McKeag, Dorothy Redd, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin. (Luchenitser, Alex) (Entered: 07/17/2008)
Set/Reset Deadlines: Exhibits Withdrawal Letter due by 12/23/2009. Current deadline to withdraw exhibits has been terminated. (ljf, ) (Entered: 06/19/2008)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 10 of 38

05/23/2008
05/23/2008 05/22/2008
05/19/2008 04/24/2008
04/24/2008 04/24/2008 04/24/2008 04/24/2008 04/08/2008 04/07/2008
01/17/2008 01/10/2008 12/03/2007 02/21/2007 09/13/2006

404 ORDER granting/approving 402 Joint Motion/Stipulation By All Parties Re Briefing and Settlement Negotiations Re Attorney's Fees, Costs, and Expenses. Deadline for plaintiffs to file motion for attorney's fees and expenses, and bill of costs, extended to July 31, 2008. See Order for other deadlines. Signed by Magistrate Judge Thomas J. Shields on 5/23/2008. (jeb) (Entered: 05/23/2008)
403 EXHIBIT WITHDRAWAL LETTER to counsel of record; Withdrawal of Exhibits due by 6/23/2008. (Attachments: # 1 receipt) (ljf, ) (Entered: 05/23/2008)
402 Joint MOTION for Extension of Time to File and Stipulation by All Parties Re Briefing and Settlement Negotiations Re Attorney's Fees, Costs, and Expenses Motions referred to Thomas J. Shields. by Bobby Shelton, Jerry Dean Ashburn, Sandra Sobotka, Americans United for Separation of Church and State, Prison Fellowship Ministries, Carol Delp, Ardene McKeag, Dorothy Redd, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin. Responses due by 6/11/2008 (Attachments: # 1 Text of Proposed Order)(Luchenitser, Alex) (Entered: 05/22/2008)
401 ORDER denying 400 Motion for Leave to File. Judgment entered in this case is hereby amended but injunction remains in full force. See order for specifics. Signed by Chief Judge Robert W. Pratt on 5/19/2008. (mlm) (Entered: 05/19/2008)
400 MOTION for Leave to File Exhibits in Support of Letter to Court Motions referred to Thomas J. Shields. by Bobby Shelton, Jerry Dean Ashburn, Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Responses due by 5/12/2008 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Luchenitser, Alex) (Entered: 04/24/2008)
399 STATEMENT (letter to Court re how to proceed in case). (Luchenitser, Alex) (Entered: 04/24/2008)
398 BRIEF PFM/IFI's Letter. (Lacy, Michael) (Entered: 04/24/2008)
397 BRIEF State of Iowa's Letter. (Wallace, H) (Entered: 04/24/2008)
396 STATEMENT re: Plaintiffs' Proposed Motion for Leave to File Evidentiary Materials. (Lacy, Michael) (Entered: 04/24/2008)
395 TEXT ORDER re 394 THE SCHEDULED TELEPHONE HEARING SHALL COMMENCE AT 11:45 A.M. CENTRAL TIME.. Signed by Chief Judge Robert W. Pratt on 4/8/2008. (mlm, ) (Entered: 04/08/2008)
394 TEXT ORDER. AT THE REQUEST OF THE PARTIES, THE COURT WILL HOLD A STATUS CONFERENCE VIA TELEPHONE ON APRIL 10, 2008, AT 12:05 P.M. DEFENDANTS SHALL INITIATE THE PHONE CALL. THE COURT CAN BE REACHED AT (563) 884−7652. Signed by Chief Judge Robert W. Pratt on 4/7/08. Signed by Chief Judge Robert W. Pratt on 4/7/08. (mlm, ) (Entered: 04/07/2008)
393 MANDATE of USCA as to 376 Notice of Appeal, filed by Arthur Neu, Haywood Belle, Robyn Mills, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, Gary Maynard, John Baldwin, Walter Reed, Jr, (don, ) (Entered: 01/17/2008)
392 Courtesy Copy of Appeal Order: Petition for rehearing en banc is denied and petition for rehearing by the panel denied. (don, ) (Entered: 01/10/2008)
391 Courtesy Copy of Appeal Order:Cover letter, affirmed in part, reversed in part and remand (Attachments: # 1 Judgment, # 2 Opinion) (don, ) (Entered: 12/03/2007)
PUBLIC DOCKET ANNOTATION: Per request from the Plaintiff's counsel, paper exhibits 1−426, 463−274 and Plaintiff's Exhibits Complete Document Binder, sent to the 8th CCA on 2/21/07. (don, ) (Entered: 02/21/2007)
390 ORDER finding as moot 381 Motion for Attorney Fees; granting 389 Joint Motion For Approval and Entry of Settlement Agreement Regarding Attorney's Fees and Expenses. Signed by Judge Robert W. Pratt on 9/13/2006. (mlm, ) (Entered: 09/13/2006)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 11 of 38

09/11/2006
07/31/2006 07/25/2006 07/24/2006
07/24/2006 07/21/2006 07/21/2006 07/17/2006 07/10/2006

389 Joint MOTION approval and entry of settlement agreement regarding attorney's fees and expenses Motions referred to Thomas J. Shields. by Jerry Dean Ashburn, Haywood Belle, Robyn Mills, Arthur Neu, Gary Maynard, Sandra Sobotka, Americans United for Separation of Church and State, Prison Fellowship Ministries, Carol Delp, Ardene McKeag, Dorothy Redd, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin. Responses due by 9/28/2006 (Attachments: # 1 Text of Proposed Order Stipulation and Proposed Order Regarding Settlement of Attorney's Fees and Expenses)(Luchenitser, Alex) (Entered: 09/11/2006)
Set/Reset Deadlines: Deadline for Objections to Bill of Costs set for 8/7/2006. (dv, ) (Entered: 07/31/2006)
388 TEXT ORDER granting in part and denying in part 387 Motion for Extension of Time to File. The deadline for defendants to file their resistance to plaintiffs' motion for attorney's fees and expenses and plaintiffs' bill of taxable costs shall be extended 10 days from July 27 to August 7, 2006. The deadline for plaintiff's reply brief shall be August 17, 2006. . Entered by Robert W. Pratt on 7/24/2006. (mlm, ) (Entered: 07/25/2006)
387 Joint MOTION for Extension of Time to File Brief on Attorney's Fees and Costs by Bobby Shelton, Jerry Dean Ashburn, Iowa Department of Corrections, Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr, Donald Tietz, Gary Maynard, Sandra Sobotka, Americans United for Separation of Church and State, Christopher Lujan, Prison Fellowship Ministries, Carol Delp, Ardene McKeag, Dorothy Redd, Innerchange Freedom Intiative Program, Terry Mapes, Walter Kautzky, John Baldwin. Responses due by 8/10/2006 (Attachments: # 1 Text of Proposed Order Proposed Order)(Lacy, Michael) (Entered: 07/24/2006)
386 ORDER denying 385 Motion to Stay . Entered by Robert W. Pratt on 7/24/2006. (mlm, ) (Entered: 07/24/2006)
385 MOTION to Stay re 381 MOTION for Attorney Fees and Expenses by Iowa Department of Corrections, Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr, Donald Tietz, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, Walter Kautzky, John Baldwin. Responses due by 8/7/2006 (Lacy, Michael) (Entered: 07/21/2006)
384 TRANSCRIPT of Proceedings held on 06/22/06 before Judge Robert W. Pratt. Court Reporter: Theresa Kenkel. Page No(s).: 1−8. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (don, ) (Additional attachment(s) added on 10/5/2011: # 1 Main Document) (sk, ). (Entered: 07/21/2006)
383 NOTICE by Bobby Shelton, Jerry Dean Ashburn, Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd re 382 Public Docket Annotation (Notice re Letter to Court) (Attachments: # 1 letter to Court)(Luchenitser, Alex) (Entered: 07/17/2006)
381 MOTION for Attorney Fees and Expenses by Bobby Shelton, Jerry Dean Ashburn, Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Responses due by 7/27/2006 (Attachments: # 1 Memorandum of Points and Authorities)(Luchenitser, Alex) (Additional attachment(s) added on 2/22/2012: # 2 Itemized Expenses, # 3 Itemized Expenses, # 4 Itemized Expenses) (bp, ). (Additional attachment(s) added on 3/5/2012: # 5 itemized list vol III, # 6 itemized list Vol III, # 7 itemized list vol III) (jm, ). (Additional attachment(s) added on 3/13/2012: # 8 additional attachments, # 9 additional attachments, # 10 additional attachments) (jm, ). (Additional attachment(s) added on 5/18/2012: # 11 additional attachments, # 12 additional attachments, # 13 additional attachments, # 14 additional attachments, # 15 additional attachments) (jm, ). (Additional attachment(s) added on 8/17/2012: # 16 expenses) (cc, ). (Additional attachment(s) added on 9/14/2012: # 17 expenses, # 18 expenses) (cc, ). (Entered: 07/10/2006)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 12 of 38

07/10/2006
06/30/2006 06/30/2006 06/29/2006 06/29/2006 06/29/2006 06/29/2006
06/29/2006 06/23/2006 06/23/2006 06/22/2006 06/22/2006 06/14/2006 06/09/2006

380 BILL OF COSTS by Bobby Shelton, Jerry Dean Ashburn, Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Deadline for Objections to Bill of Costs set for 7/27/2006. (Attachments: # 1 Exhibit Itemized listing of taxable costs# 2 Exhibit Fees of the clerk (tab 3)# 3 Exhibit Transcript fees (tab 4, part 1)# 4 Exhibit Transcript fees (tab 4, part 2)# 5 Exhibit Witness fees for non−expert witnesses (tab 5)# 6 Exhibit Trial attendance for expert Gordon Kamka (tab 6)# 7 Exhibit Trial attendance for expert Winnifred Fallers Sullivan (tab 7)# 8 Exhibit Taxable copying/printing costs (tab 8)# 9 Exhibit Deposition costs (tab 9, part 1)# 10 Exhibit Deposition costs (tab 9, part 2)# 11 Exhibit Deposition costs (tab 9, part 3))(Luchenitser, Alex) (Additional attachment(s) added on 8/17/2012: # 12 expenses) (cc, ). (Entered: 07/10/2006)
379 USCA Scheduling Order as to 376 Notice of Appeal, filed by Terry Mapes,, John Baldwin,, Innerchange Freedom Intiative Program,, Prison Fellowship Ministries,, Haywood Belle,, Robyn Mills,, Arthur Neu,, Walter Reed, Jr, Gary Maynard,. (don, ) (Entered: 06/30/2006)
378 USCA Case Number 06−2741 for 376 Notice of Appeal, filed by Terry Mapes,, John Baldwin,, Innerchange Freedom Intiative Program,, Prison Fellowship Ministries,, Haywood Belle,, Robyn Mills,, Arthur Neu,, Walter Reed, Jr, Gary Maynard,. (don, ) (Entered: 06/30/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 376 Notice of Appeal. Sent electronically (don, ) (Entered: 06/29/2006)
*** COA BATCH RECEIPT of Notice of Appeal and related supporting documents sent on: Thu Jun 29 16:32:38 CDT 2006 (don, ) (Entered: 06/29/2006)
377 NOTICE of Appeal Supplement for the Defendants re 376 Notice of Appeal (don, ) (Entered: 06/29/2006)
376 NOTICE OF APPEAL by Haywood Belle, Robyn Mills, Arthur Neu, Walter Reed, Jr, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin. 367 Memorandum Opinion and Order, 368 Judgment, 212 Memorandum and Order on Cross Motions for Summary Judgment, and 297 Order on Motions in Limine. Fee paid in the amount of $455. (Appel, Brent) Modified on 6/29/2006 Add links and text (don, ). (Entered: 06/29/2006)
375 Sealed Document. (Attachments: # 1 Attachment)(Appel, Brent) (Entered: 06/29/2006)
382 PUBLIC DOCKET ANNOTATION copy of final ruling sent to pro se pltf Jerry D. Ashburn 6/23/06 (ljk, ) (Entered: 07/11/2006)
374 ORDER granting 373 Motion to Substitute Letter of Credit for Supersedeas Bond . Entered by Robert W. Pratt on 6/23/2006. (mlm, ) (Entered: 06/23/2006)
373 ORAL MOTION to Substitute Letter of Credit for Supersedeas Bond made at 372 Telephone Conference by Prison Fellowship Ministries and InnerChange Freedom Initiative. (jhm). (Entered: 06/22/2006)
372 Minute Entry for proceedings held before Judge Robert W. Pratt : Telephone Conference held on 6/22/2006. 3:00 pm to 3:18 pm. (Court Reporter Theresa Kenkel.) (jhm). (Entered: 06/22/2006)
371 TEXT ORDER granting 370 Plaintiffs' Unopposed Motion for Extension of Time to File Bill of Costs and Motion for Attorney's Fees and Expenses. Plaintiffs shall have until July 10, 2006, to file their bill of costs and motion for attorneys' fees and expenses. Entered by Thomas J. Shields on 6/14/2006. (jeb) (Entered: 06/14/2006)
370 MOTION for Extension of Time to File Bill of Costs and Motion for Attorney's Fees and Expenses by Bobby Shelton, Jerry Dean Ashburn, Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Responses due by 6/26/2006 (Attachments: # 1 Text of Proposed Order)(Luchenitser, Alex) (Entered: 06/09/2006)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 13 of 38

06/07/2006 06/05/2006 06/02/2006 04/20/2006 04/18/2006
03/08/2006
02/06/2006 02/03/2006 01/29/2006 01/27/2006 01/27/2006 01/27/2006 01/26/2006 01/26/2006
01/25/2006 01/25/2006 01/09/2006 01/06/2006 12/27/2005 12/21/2005

369 Addendum to Trial Exhibit List (Clerk's No. 343). (jhm). (Entered: 06/07/2006)
368 JUDGMENT in favor of Plaintiffs against Defendants See order for particulars. . Entered by Marjorie Krahn, Clerk on 6/5/2006. (don, ) (Entered: 06/05/2006)
367 MEMORANDUM OPINION AND ORDER FOLLOWING TRIAL . Entered by Robert W. Pratt on 6/2/2006. (don, ) Modified on 6/5/2006 change code to show opinion(don, ). (Entered: 06/02/2006)
366 REPLY to re 365 Notice (Other), Notice (Other) Defendants' Joint Reply to Plaintiffs' Notice of Newly Decided Authority in Support of Plaintiffs' Proposed Findings of Fact and Conclusions of Law. (Wallace, H) (Entered: 04/20/2006)
365 NOTICE by Bobby Shelton, Jerry Dean Ashburn, Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd re 361 Proposed Findings of Fact of Newly Decided Authority in Support of Plaintiffs' Proposed Findings of Fact and Conclusions of Law (Attachments: # 1 Exhibit Copy of New Authority)(Luchenitser, Alex) (Entered: 04/18/2006)
364 TRANSCRIPT of Proceedings held on 2/17/06 before Judge Robert W Pratt. Court Reporter: Theresa Kenkel. Page No(s).: 2965−3067 Volume XIV. (gk, ) (Additional attachment(s) added on 11/9/2011: # 1 Transcript part 1, # 2 Transcript part 2) (don, ). (Entered: 03/08/2006)
363 REPLY to re 362 Objection Defendants' Joint Reply to Plaintiffs' Amended Proposed Findings of Fact and Conclusions of Law. (Wallace, H) (Entered: 02/06/2006)
362 OBJECTIONS to 354 Proposed Findings of Fact by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. (Luchenitser, Alex) (Entered: 02/03/2006)
361 Proposed Findings of Fact by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. (Luchenitser, Alex) (Entered: 01/29/2006)
360 ORDER . Entered by Robert W. Pratt on 1/27/2006. (mlm, ) (Entered: 01/27/2006)
359 Letter from Alex J. Luchenitser. (jhm). (Entered: 01/27/2006)
358 Minute Entry for proceedings held before Judge Robert W. Pratt : Telephone Conference held on 1/27/2006. 9:00 a.m. to 9:15 a.m. (Court Reporter Kelli Mulcahy.) (jhm). (Entered: 01/27/2006)
357 Letter from Anthony F. Troy. (jhm). (Entered: 01/26/2006)
356 TEXT ORDER . Entered by Robert W. Pratt on 1/26/2006. (mlm, ) THE COURT WILL HEAR THE PARTIES, VIA TELEPHONE, JANUARY 27, 2006, AT 9:00 A.M. CENTRAL TIME, REGARDING THE LETTER RECEIVED VIA FAX FROM ANTHONY F. TROY. THE COURT WILL INITIATE THE PHONE CALL. ALL PARTIES SHALL BE AVAILABLE TO TAKE THE PHONE CALL. (Entered: 01/26/2006)
355 Proposed Findings of Fact by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. (Luchenitser, Alex) (Entered: 01/25/2006)
354 Proposed Findings of Fact by Haywood Belle, Robyn Mills, Arthur Neu, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin. (Wallace, H) (Entered: 01/25/2006)
353 ORDER . Entered by Robert W. Pratt on 1/9/2006. (mlm, ) (Entered: 01/09/2006)
352 Letter from Alex J. Luchenitser re: ICN costs. (jhm, ) (Entered: 01/06/2006)
351 Letter from Alex J. Luchenitser re: trial exhibits. (jhm). (Entered: 12/28/2005)
350 TRANSCRIPT of Proceedings held on 12/1/05 before Judge RW Pratt. Court Reporter: Theresa Kenkel. Page No(s).: 2772−2964. Volume XIII THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 14 of 38

12/21/2005
12/21/2005 12/21/2005 12/06/2005 12/01/2005 12/01/2005 12/01/2005 12/01/2005 12/01/2005 12/01/2005
12/01/2005 12/01/2005
12/01/2005
12/01/2005

LOCATED IN THE CLERK'S OFFICE. (fm, ) (Additional attachment(s) added on 9/14/2012: # 1 transcript, # 2 transcript, # 3 transcript) (cc, ). (Entered: 12/21/2005)
349 TRANSCRIPT of Proceedings held on 11/30/05 before Judge RW Pratt. Court Reporter: Ann Moyna. Page No(s).: 2557−2771. Volume XII (Main Document 349 replaced on 10/5/2011) (sc). (Main Document 349 replaced on 10/5/2011) (sc, ). (Additional attachment(s) added on 10/5/2011: # 1 Part 2) (sc, ). (Additional attachment(s) added on 10/5/2011: # 2 Part 3) (sc, ). (Entered: 12/21/2005)
348 TRANSCRIPT of Proceedings held on 11/29/05 before Judge RW Pratt. Court Reporter: Theresa Kenkel. Page No(s).: 2325−2556. Volume XI (fm, ) (Additional attachment(s) added on 11/9/2011: # 1 Transcript part 1, # 2 Transcript part 2, # 3 Transcript part 3) (don, ). (Entered: 12/21/2005)
347 TRANSCRIPT of Proceedings held on 11/28/05 before Judge RW Pratt. Court Reporter: Ann T Moyna. Page No(s).: 2084−2324. Volume X (Main Document 347 replaced on 10/5/2011) (sc). (Additional attachment(s) added on 10/5/2011: # 1 Part 2, # 2 Part 3) (sc, ). (Entered: 12/21/2005)
346 POST−TRIAL ORDER . Entered by Robert W. Pratt on 12/6/2005. (mlm, ) (Entered: 12/06/2005)
345 Witness List (Bench Trial). (jhm). (Entered: 12/06/2005)
344 EXHIBITS (Bench Trial) located in Judge R. Pratt Chambers pending final order on bench trial. Thereafter, exhibits will be placed in Clerk's Office (Galley Closet). (jhm). (Additional attachment(s) added on 7/29/2013: # 1 Attachment, # 2 Attachment, # 3 Attachment) (Intern, mjk). (Entered: 12/06/2005)
343 Exhibit List (Bench Trial). (jhm). (Entered: 12/06/2005)
342 Minute Entry for proceedings held before Judge Robert W. Pratt : Fourteenth Day of Bench Trial completed on 12/1/2005. 9:00 a.m. to 3:07 p.m. (Court Reporter Thjeresa Kenkel.) (jhm). (Entered: 12/05/2005)
341 TRANSCRIPT of Proceedings held on 11/3/05 before Judge Robert W Pratt. Court Reporter: Ann T Moyna. Page No(s).: 1892−2083 Volume IX. (Main Document 341 replaced on 10/5/2011) (sc). (Entered: 12/02/2005)
340 TRANSCRIPT of Proceedings held on 11/2/05 before Judge Robert W Pratt. Court Reporter: Eileen Hicks. Page No(s).: 1659−1891 Volume VIII. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (gk, ) (Additional attachment(s) added on 10/5/2011: # 1 Part 1, # 2 Part 2) (sk, ). (Entered: 12/02/2005)
339 TRANSCRIPT of Proceedings held on 11/1/05 before Judge Robert W Pratt. Court Reporter: Theresa Kenkel. Page No(s).: 1439−1658 Volume VII.(gk, ) (Additional attachment(s) added on 2/3/2012: # 1 Transcript, # 2 Transcript, # 3 Transcript) (internclk1, ). Modified on 2/3/2012 (internclk1, ). (Entered: 12/02/2005)
338 TRANSCRIPT of Proceedings held on 10/31/05 before Judge Robert W Pratt. Court Reporter: Ann T Moyna. Page No(s).: 1194−1438 Volume VI. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (gk, ) (Additional attachment(s) added on 9/14/2012: # 1 transcript, # 2 transcript, # 3 transcript, # 4 transcript) (cc, ). (Entered: 12/02/2005)
337 TRANSCRIPT of Proceedings held on 10/27/05 before Judge Robert W Pratt. Court Reporter: Theresa Kenkel. Page No(s).: 725−1193 Volume IV. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (gk, ) (Additional attachment(s) added on 9/14/2012: # 1 transcript, # 2 transcript, # 3 transcript) (cc, ). (Entered: 12/02/2005)
336 TRANSCRIPT of Proceedings held on 10/28/05 before Judge Robert W Pratt. Court Reporter: Eileen Hicks. Page No(s).: 961−724 Volume V. (Main Document 336 replaced on 10/5/2011) (sc). (Additional attachment(s) added on 10/5/2011: # 1 Part 2) (sc). (Entered: 12/02/2005)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 15 of 38

11/30/2005 11/29/2005 11/28/2005 11/28/2005 11/28/2005 11/23/2005 11/21/2005 11/17/2005 11/17/2005 11/16/2005
11/16/2005
11/16/2005
11/16/2005 11/15/2005
11/15/2005

335 Minute Entry for proceedings held before Judge Robert W. Pratt : Thirteenth Day of Bench Trial held on 11/30/2005. (Court Reporter Ann Moyna). (jhm). (Entered: 12/01/2005)
334 Minute Entry for proceedings held before Judge Robert W. Pratt : Twelfth Day of Bench Trial held on 11/29/2005. 8:30 a.m. to 4:50 p.m. (Court Reporter Theresa Kenkel.) (jhm). (Entered: 12/01/2005)
333 Minute Entry for proceedings held before Judge Robert W. Pratt : Eleventh Day of Bench Trial held on 11/28/2005. 8:30 a.m. to 5:00 p.m. (Court Reporter Ann Moyna.) (jhm). Modified on 12/1/2005 to correct day of trial. (jhm). (Entered: 12/01/2005)
332 ORAL ORDER re Letter, formerly Clerk's No. 330, entered by Robert W. Pratt on 11/28/2005. Court orders Clerk of Court, on Plaintiffs' motion, to remove letter from docket in this case. (jhm). (Entered: 11/28/2005)
331 ORDER denying 329 Motion to Set Aside/Reconsider . Entered by Robert W. Pratt on 11/28/2005. (mlm, ) (Entered: 11/28/2005)
329 MOTION to Set Aside/Reconsider 328 Order Defendants' Motion to Reconsider by Haywood Belle, Robyn Mills, Arthur Neu, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin. Responses due by 12/12/2005 (Wallace, H) (Entered: 11/23/2005)
328 ORDER ORDER REGARDING IOWA CABLE NETWORK (ICN) COSTS . Entered by Robert W. Pratt on 11/21/2005. (mlm, ) (Entered: 11/21/2005)
327 ORDER denying 320 Motion to Strike, finding as moot 321 Motion to Expedite . Entered by Robert W. Pratt on 11/17/2005. (mlm, ) (Entered: 11/17/2005)
323 REPLY re 322 Response to Motion, filed by Haywood Belle, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr, Donald Tietz, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, Walter Kautzky, John Baldwin. (Appel, Brent) (Entered: 11/17/2005)
322 RESPONSE to Motion re 321 MOTION to Expedite Briefing and Hearing Schedule on Defendants' Joint Motion to Strike Plaintiffs' Trial Exhibits 479 Through 481 filed by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Replies due by 11/29/2005. (Luchenitser, Alex) (Entered: 11/16/2005)
321 MOTION to Expedite Briefing and Hearing Schedule on Defendants' Joint Motion to Strike Plaintiffs' Trial Exhibits 479 Through 481 by Haywood Belle, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr, Donald Tietz, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, Walter Kautzky, John Baldwin. Responses due by 12/5/2005 (Appel, Brent) (Entered: 11/16/2005)
320 Joint MOTION to Strike 312 Statement Defendants' Joint Motion to Strike Plaintiffs' Trial Exhibits 479 Through 481 by Haywood Belle, Robyn Mills, Arthur Neu, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin. Responses due by 12/5/2005 (Wallace, H) (Entered: 11/16/2005)
319 ORDER granting 313 Motion to Compel, finding as moot 314 Motion to Expedite . Entered by Robert W. Pratt on 11/16/2005. (mlm, ) (Entered: 11/16/2005)
326 TRANSCRIPT of Proceedings held on 10/26/05 before Judge Robert W. Pratt. Court Reporter: Eileen Hicks. Page No(s).: 476−724 Vil. III. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (dv, ) (Additional attachment(s) added on 10/5/2011: # 1 Main Document) (sk, ). (Additional attachment(s) added on 9/14/2012: # 2 transcript, # 3 transcipt) (cc, ). (Entered: 11/17/2005)
325 TRANSCRIPT of Proceedings held on 10/25/05 before Judge Robert W. Pratt. Court Reporter: Ann T. Moyna. Page No(s).: 215−475 Vol. II. (dv, ) (Additional attachment(s) added on 11/9/2011: # 1 Transcript) (don, ). (Additional attachment(s) added on 9/14/2012: # 2 transcript, # 3 transcript, # 4 transcript, # 5

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 16 of 38

11/15/2005 11/15/2005 11/14/2005
11/10/2005 11/10/2005
11/10/2005 11/10/2005
11/08/2005 11/04/2005 11/03/2005 11/02/2005 11/01/2005

transcript) (cc, ). (Entered: 11/17/2005)
324 TRANSCRIPT of Proceedings held on 10/24/05 before Judge Robert W. Pratt. Court Reporter: Theresa Kenkel. Page No(s).: 1−214 Vol. I. (dv, ) (Additional attachment(s) added on 11/9/2011: # 1 Transcript 1, # 2 Transcript part 2, # 3 Transcript part 3) (don, ). (Entered: 11/17/2005)
318 REPLY in Support of Plaintiffs' Motion for Order Requiring Production of Documents Concerning Defendants' Inmate and Ex−Inmate Witnesses re 317 Response to Motion, filed by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. (Luchenitser, Alex) (Entered: 11/15/2005)
317 RESPONSE to Motion re 313 MOTION to Compel for Order Requiring Production of Documents Concerning Defendants' Inmate and Ex−Inmate Witnesses filed by Haywood Belle, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr, Donald Tietz, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, Walter Kautzky, John Baldwin. Replies due by 11/25/2005. (Appel, Brent) (Entered: 11/14/2005)
316 ORDER . Entered by Robert W. Pratt on 11/10/2005. (mlm, ) (Entered: 11/10/2005)
315 RESPONSE to Motion re 314 MOTION to Expedite Briefing and Hearing Schedule on Plaintiffs' Motion for Order Requiring Production of Documents Concering Defendants' Inmate and Ex−Inmate Witnesses Defendants' Response to Plaintiffs' Expedited Motion for Expedited Briefing and Hearing Schedule on Plaintiffs' Motion for Order Requiring Production of Documents Concerning Defendants' Inmate and Ex−inmate Witnesses filed by Haywood Belle, Robyn Mills, Arthur Neu, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin. Replies due by 11/23/2005. (Wallace, H) (Entered: 11/10/2005)
314 MOTION to Expedite Briefing and Hearing Schedule on Plaintiffs' Motion for Order Requiring Production of Documents Concering Defendants' Inmate and Ex−Inmate Witnesses by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Responses due by 11/28/2005 (Luchenitser, Alex) (Entered: 11/10/2005)
313 MOTION to Compel for Order Requiring Production of Documents Concerning Defendants' Inmate and Ex−Inmate Witnesses by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Responses due by 11/28/2005 (Attachments: # 1 Memorandum of Points and Authorities# 2 Affidavit Declaration of Alex J. Luchenitser# 3 Text of Proposed Order)(Luchenitser, Alex) (Entered: 11/10/2005)
312 STATEMENT Plaintiffs' Tender of Defendants' Summary−Judgment Fact Statements and Responses Concerning Standing as Trial Exhibits 479 Through 481. (Attachments: # 1 Exhibit 479# 2 Exhibit 480# 3 Exhibit 481)(Luchenitser, Alex) (Entered: 11/08/2005)
311 Minute Entry for proceedings held before Judge Robert W. Pratt : Tenth Day of Bench Trial held on 11/4/2005. 9:00 a.m. to 11:30 a.m. Site visit to Newton Correctional Facility. Recess until November 28, 2005. (Court Reporter Video Recording.) (jhm). (Entered: 11/08/2005)
310 Minute Entry for proceedings held before Judge Robert W. Pratt : Ninth Day of Bench Trial held on 11/3/2005. 8:30 a.m. to 4:50 p.m. (Court Reporter Ann Moyna.) (jhm). (Entered: 11/08/2005)
309 Minute Entry for proceedings held before Judge Robert W. Pratt : Eighth Day of Bench Trial held on 11/2/2005. 8:30 a.m. to 5:00 p.m. (Court Reporter Eileen Hicks.) (jhm). (Entered: 11/03/2005)
308 Minute Entry for proceedings held before Judge Robert W. Pratt : Seventh Day of Bench Trial held on 11/1/2005. 8:30 a.m. to 4:50 p.m. (Court Reporter Theresa Kenkel) (jhm). Modified on 11/2/2005 to correct Court Reporter's name. (jhm). Additional attachment, "corrected minutes" added on 12/6/2005 (jhm) to inlude

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 17 of 38

10/31/2005 10/28/2005 10/27/2005 10/26/2005 10/25/2005 10/24/2005 10/19/2005 10/17/2005 10/17/2005 10/14/2005 10/13/2005
10/12/2005
10/12/2005
10/12/2005
10/12/2005

proper witness name. Modified on 12/6/2005 (jhm). (Entered: 11/02/2005)
307 Minute Entry for proceedings held before Judge Robert W. Pratt : Sixth Day of Bench Trial held on 10/31/2005. 8:30 a.m. to 5:00 p.m. (Court Reporter Ann Moyna.) (jhm). (Entered: 11/01/2005)
306 Minute Entry for proceedings held before Judge Robert W. Pratt : Fifth Day of Bench Trial held on 10/28/2005. 8:30 a.m. to 5:00 p.m. (Court Reporter Eileen Hicks.) (jhm). (Entered: 10/31/2005)
305 Minute Entry for proceedings held before Judge Robert W. Pratt : Fourth Day of Bench Trial held on 10/27/2005. 8:30 a.m. to 5:00 p.m. (Court Reporter Theresa Kenkel.) (jhm). (Entered: 10/28/2005)
304 Minute Entry for proceedings held before Judge Robert W. Pratt : Third day of Bench Trial held on 10/26/2005. 8:30 a.m. to 5:10 p.m. (Court Reporter Eileen Hicks.) (jhm). (Entered: 10/27/2005)
303 Minute Entry for proceedings held before Judge Robert W. Pratt : Second Day of Bench Trial held on 10/25/2005. 8:30 a.m. to 5:30 p.m. (Court Reporter Ann Moyna.) (jhm). (Entered: 10/26/2005)
302 Minute Entry for proceedings held before Judge Robert W. Pratt : First Day of Bench Trial held on 10/24/2005. 9:00 a.m. to 4:50 p.m. (Court Reporter Theresa Kenkel.) (jhm). (Entered: 10/25/2005)
300 ORDER ON FINAL PRETRIAL CONFERENCE [see order for particulars]. Entered by Thomas J. Shields on 10/19/2005. (dam) (Entered: 10/19/2005)
299 NOTICE by Haywood Belle, Robyn Mills, Arthur Neu, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin re 294 Proposed Pretrial Order,, 265 Witness List Defendants' Joint Update to Witness List (Wallace, H) (Entered: 10/17/2005)
298 NOTICE by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd Plaintiffs' Update to Witness List (Luchenitser, Alex) (Entered: 10/17/2005)
301 Minute Entry for proceedings held before Judge Thomas J. Shields : Final Pretrial Conference held on 10/14/2005. 9:15 a.m. to 10:45 a.m. (jhm). (Entered: 10/20/2005)
297 ORDER granting 266 Motion in Limine, granting in part and denying in part 267 Motion in Limine, denying 268 Motion in Limine, denying 269 Motion in Limine, denying 270 Motion in Limine, denying 271 Motion in Limine, denying 273 Motion in Limine . Entered by Robert W. Pratt on 10/13/2005. (mlm, ) (Entered: 10/13/2005)
296 REPLY re 273 MOTION in Limine to Exclude from Evidence Defendants' Previously Undisclosed Witnesses and Exhibits filed by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Luchenitser, Alex) (Entered: 10/12/2005)
295 REPLY to Defendants' Opposition to Plaintiffs' Motion in Limine to Deem Certain Factual Matters Admitted re 267 MOTION in Limine to Deem Certain Factual Matters Admitted filed by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. (Rose, Sara) (Entered: 10/12/2005)
294 Proposed Pretrial Order Final Pretrial Conference Order by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. (Attachments: # 1 Appendix A# 2 Appendix B# 3 Appendix C# 4 Appendix D# 5 Appendix E# 6 Appendix F# 7 Appendix G)(Rose, Sara) (Entered: 10/12/2005)
293 REPLY to Defendants' Opposition to Plaintiffs' Motion in Limine to Admit Certain Categories of Evidence at Trial re 266 MOTION in Limine to Admit Certain Categories of Evidence at Trial filed by Sandra Sobotka, Americans United for

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 18 of 38

10/12/2005 10/12/2005
10/12/2005
10/11/2005 10/11/2005 10/11/2005 10/10/2005 10/10/2005 10/10/2005 10/10/2005 10/10/2005 10/10/2005 10/10/2005

Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. (Rose, Sara) (Entered: 10/12/2005)
292 REPLY in Support of Plaintiffs' Motion in Limine to Exclude All Evidence Exclusively Related to the Turner Standard re 269 MOTION in Limine to Exclude All Evidence Exclusively Related to the Turner Standard filed by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. (Rose, Sara) (Entered: 10/12/2005)
291 REPLY Memorandum in Support of Defendants' Joint Motion in Limine to Exclude Testimony of Dr. Winnifred Fallers Sullivan re 285 Response to Motion, filed by Iowa Department of Corrections, Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr, Donald Tietz, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, Walter Kautzky, John Baldwin. (Wallace, H) (Entered: 10/12/2005)
290 REPLY Memorandum in Support of Their Joint Motion in Limine to Exclude Plaintiffs' Exhibit 320, Selected Photographs From Prison Inspection, and Motion for Recorded Premise Visit re 283 Response to Motion, filed by Iowa Department of Corrections, Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr, Donald Tietz, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, Walter Kautzky, John Baldwin. (Wallace, H) (Entered: 10/12/2005)
289 TEXT ORDER granting 288 Motion for Leave to Appear Pro Hac Vice . Entered by Marjorie Krahn, Clerk on 10/11/2005. (dv, ) (Entered: 10/11/2005)
288 MOTION for Leave to Appear Pro Hac Vice of Robert A. Angel by Prison Fellowship Ministries, Innerchange Freedom Intiative Program. (dv, ) (Entered: 10/11/2005)
287 TEXT ORDER: Due to scheduling changes on the Court's calendar, the final pretrial conference set in this case for Friday, October 14, 2005 will begin at 9:00 AM (not 11:15 a.m. as noted in the Court's prior order). The pretrial conference will be held in Room 420 at the U.S. Courthouse in Des Moines, Iowa . Entered by Thomas J. Shields on 10/11/2005. (dam) (Entered: 10/11/2005)
286 STATEMENT Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion in Limine to Exclude Certain of Defendants' Witnesses and Exhibits. (Wallace, H) (Entered: 10/10/2005)
285 RESPONSE to Motion re 271 Joint MOTION in Limine to Exclude Testimony of Dr. Winnifred Fallers Sullivan filed by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Replies due by 10/20/2005. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Luchenitser, Alex) (Entered: 10/10/2005)
284 RESPONSE to Motion re 268 Joint MOTION in Limine to Exclude Testimony of E. Stephen Afemand and Barbara Walrath filed by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Replies due by 10/20/2005. (Luchenitser, Alex) (Entered: 10/10/2005)
283 RESPONSE to Motion re 270 Joint MOTION in Limine to Exclude Plaintiffs' Exhibit 320, Selected Photographs from Prison Inspection, and Motion for Recorded Premise Visit filed by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Replies due by 10/20/2005. (Luchenitser, Alex) (Entered: 10/10/2005)
279 STATEMENT Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion in Limine to Admit Certain Categories of Evidence at Trial. (Wallace, H) (Entered: 10/10/2005)
278 STATEMENT Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion in Limine to Deem Certain Factual Matters Admitted. (Wallace, H) (Entered: 10/10/2005)
277 STATEMENT Defendants' Memorandum in Opposition to Plaintiffs' Motion in Limine to Exclude All Evidence Related Exclusively to the Turner Standard.

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 19 of 38

10/07/2005 10/07/2005 10/06/2005 09/30/2005
09/30/2005 09/30/2005 09/30/2005
09/30/2005 09/30/2005 09/30/2005

(Wallace, H) (Entered: 10/10/2005)
276 STATEMENT Plaintiffs' Objections to Defendants' Designations of Depositions and Exhibits. (Attachments: # 1 Appendix Plaintiffs' Objections to Defendants' Exhibits)(Luchenitser, Alex) (Entered: 10/07/2005)
275 STATEMENT Defendants' Objections to Plaintiffs' Exhibits and Deposition Designations. (Attachments: # 1 Exhibit − Defendants' Objections to Plaintiffs' Exhibit List Spreadsheet)(Wallace, H) (Entered: 10/07/2005)
274 NOTICE by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd of Paper Submission in Support of Plaintiffs' Response to "Defendants' Joint Motion in Limine to Exclude Plaintiffs' Exhibit 320, Selected Photographs from Prison Inspection, and Motion for Recorded Premise Visit" (Luchenitser, Alex) (Entered: 10/06/2005)
273 MOTION in Limine to Exclude from Evidence Defendants' Previously Undisclosed Witnesses and Exhibits by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Responses due by 10/17/2005 (Attachments: # 1 Memorandum of Points and Authorities# 2 Text of Proposed Order # 3 Affidavit Declaration of Alex J. Luchenitser# 4 Exhibit Exhibit A to Luchenitser Decl.# 5 Exhibit Exhibit B to Luchenitser Decl.# 6 Exhibit Exhibit C to Luchenitser Decl.# 7 Exhibit Exhibit D to Luchenitser Decl.# 8 Exhibit Exhibit E to Luchenitser Decl.# 9 Exhibit Exhibit F to Luchenitser Decl.# 10 Exhibit Exhibit G to Luchenitser Decl.# 11 Exhibit Exhibit H to Luchenitser Decl.# 12 Exhibit Exhibit I to Luchenitser Decl.# 13 Exhibit Exhibit J to Luchenitser Decl.# 14 Exhibit Exhibit K to Luchenitser Decl.)(Luchenitser, Alex) (Entered: 09/30/2005)
272 NOTICE by Prison Fellowship Ministries, Innerchange Freedom Intiative Program re 271 Joint MOTION in Limine to Exclude Testimony of Dr. Winnifred Fallers Sullivan Exhibit B In Support of Defendants' Memorandum (Attachments: # 1 Exhibit B part 1 to Memorandum# 2 Exhibit B part 2 to Memorandum# 3 Exhibit B part 3 to Memorandum)(Appel, Brent) (Entered: 09/30/2005)
271 Joint MOTION in Limine to Exclude Testimony of Dr. Winnifred Fallers Sullivan by Prison Fellowship Ministries, Innerchange Freedom Intiative Program. Responses due by 10/17/2005 (Attachments: # 1 Memorandum in Support# 2 Exhibit A to Memorandum)(Appel, Brent) (Entered: 09/30/2005)
270 Joint MOTION in Limine to Exclude Plaintiffs' Exhibit 320, Selected Photographs from Prison Inspection, and Motion for Recorded Premise Visit by Haywood Belle, Robyn Mills, Arthur Neu, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin. Responses due by 10/17/2005 (Attachments: # 1 Memorandum in Support of Defendants' Joint Motion in Limine to Exclude Plaintiffs' Exhibit 320, Selected Photographs from Prison Inspection, and Motion for Recorded Premise Visit)(Wallace, H) (Entered: 09/30/2005)
269 MOTION in Limine to Exclude All Evidence Exclusively Related to the Turner Standard by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Responses due by 10/17/2005 (Attachments: # 1 Memorandum of Points and Authorities# 2 Text of Proposed Order Granting Plaintiffs' Motion In Limine to Exclude All Evidence Related to the Turner Standard)(Rose, Sara) (Entered: 09/30/2005)
268 Joint MOTION in Limine to Exclude Testimony of E. Stephen Afemand and Barbara Walrath by Prison Fellowship Ministries, Innerchange Freedom Intiative Program. Responses due by 10/17/2005 (Attachments: # 1 Memorandum in Support# 2 Exhibit A to Memorandum# 3 Exhibit B to Memorandum)(Appel, Brent) (Entered: 09/30/2005)
267 MOTION in Limine to Deem Certain Factual Matters Admitted by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Responses due by 10/17/2005 (Attachments: # 1 Memorandum of Points and Authorities# 2 Exhibit A# 3 Exhibit B)(Rose, Sara) (Entered: 09/30/2005)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 20 of 38

09/30/2005 09/23/2005 09/22/2005
09/13/2005 09/13/2005 09/02/2005 09/02/2005 09/02/2005 09/01/2005
09/01/2005 08/30/2005 08/30/2005 08/29/2005

266 MOTION in Limine to Admit Certain Categories of Evidence at Trial by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Responses due by 10/17/2005 (Attachments: # 1 Memorandum of Points and Authorities# 2 Exhibit Exhibit A)(Rose, Sara) (Entered: 09/30/2005)
265 Witness List by Haywood Belle, Robyn Mills, Arthur Neu, Gary Maynard, Terry Mapes, John Baldwin. (Wallace, H) (Entered: 09/23/2005)
264 TEXT ORDER. The Court has previously discussed with counsel for the parties whether pretrial briefs need to be filed in light of the extensive briefing previously submitted in relation to motions for summary judgment now ruled upon by District Judge Robert W. Pratt. Further pretrial briefing will only be required to the extent that a party is asserting a position(s)not previously raised in the prior brief; and if there has been new relevant case law decided since the Court's ruling on the motions for summary judgment. The Court emphasizes that no further pretrial briefing shall be filed if it is merely a reorganization of the previously filed briefs. Entered by Thomas J. Shields on 9/22/2005. (dam) (Entered: 09/22/2005)
263 TRANSCRIPT of Proceedings held on 09/01/05 before Judge Thomas J. Shields. Court Reporter: Ann T. Moynaa. Page No(s).: 1−41. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (dv, )(internclk2, ) (Entered: 09/13/2005)
262 TRANSCRIPT of Proceedings held on 07/27/05 before Judge Robert W. Pratt. Court Reporter: Jackie M. Sinnott. Page No(s).: 1−5. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (dv, ) (internclk2, ) (Entered: 09/13/2005)
261 ORDER adopting Joint Motion/Stipulation by all Parties for Entry of Pretrial Schedule 257 . Entered by Thomas J. Shields on 9/2/2005. (dam) (Entered: 09/02/2005)
260 ORDER granting in part and denying in part Plaintiffs' Expedited Motion for Leave to Take Two Additional Depositions and Compel Production of Related Documents 251 Entered by Thomas J. Shields on 9/2/2005. (dam) (Entered: 09/02/2005)
259 ORDER regarding trial and pretrial matters, and specifically addressing the use of ICN facilities during trial (see order for particulars). Entered by Thomas J. Shields on 9/2/2005. (dam) (Entered: 09/02/2005)
258 Minute Entry for proceedings held before Judge Thomas J. Shields : Motion Hearing held on 9/1/2005 re 251 MOTION for Leave to Take Two Additional Depositions and Compel Production of Related Documents filed by Americans United for Separation of Church and State 252 MOTION to Expedite Briefing Schedule for Plaintiffs' Motion for Leave to Take Two Additional Depositions and Compel Productions of Related Documents filed by Americans United for Separation of Church and State. (Court Reporter Ann Moyna.) (jm, ) (Entered: 09/01/2005)
257 Joint MOTION Entry of Pretrial Schedule by All parties and Proposed Order by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. Responses due by 9/19/2005 (Luchenitser, Alex) (Entered: 09/01/2005)
256 ORDER NUNC PRO TUNC re 212 Order on Motion for Summary Judgment. Entered by Robert W. Pratt on 8/30/2005. (sk, ) (Entered: 08/30/2005)
255 REPLY Brief in Support re 251 MOTION for Leave to Take Two Additional Depositions and Compel Production of Related Documents filed by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd. (Luchenitser, Alex) (Entered: 08/30/2005)
254 RESPONSE to Motion re 251 MOTION for Leave to Take Two Additional Depositions and Compel Production of Related Documents, 252 MOTION to Expedite Briefing Schedule for Plaintiffs' Motion for Leave to Take Two Additional Depositions and Compel Productions of Related Documents Defendants' Joint

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 21 of 38

08/24/2005
08/23/2005
08/23/2005
08/19/2005 08/19/2005 08/19/2005 08/16/2005
08/15/2005 08/04/2005 08/04/2005 08/02/2005 08/02/2005 08/01/2005

Resistance to Plaintiffs' Expedited Motion for Leave to Take Two Additional Depositions and Compel Production of Related Documents filed by Haywood Belle, Robyn Mills, Arthur Neu, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, John Baldwin. Replies due by 9/9/2005. (Wallace, H) (Entered: 08/29/2005)
253 ORDER granting 252 Plaintiffs' Expedited Motion for Entry of Expedited Briefing Schedule. Hearing on 251 Plaintiffs' Expedited Motion for Leave to Take Two Additional Depositions and Compel Production of Related Documents set for 9/1/05 at 1:30 p.m. Entered by Thomas J. Shields on 8/24/2005. (jeb) (Entered: 08/24/2005)
252 MOTION to Expedite Briefing Schedule for Plaintiffs' Motion for Leave to Take Two Additional Depositions and Compel Productions of Related Documents by Americans United for Separation of Church and State. Responses due by 9/9/2005 (Attachments: # 1 Text of Proposed Order)(Luchenitser, Alex) (Entered: 08/23/2005)
251 MOTION for Leave to Take Two Additional Depositions and Compel Production of Related Documents by Americans United for Separation of Church and State. Responses due by 9/9/2005 (Attachments: # 1 Plaintiffs' Memorandum of Points and Authorities in Support of Plaintiffs' Expedited Motion for Leave to Take Two Additional Depositions and Compel Production of Related Documents# 2 Plaintiffs' Notice of Paper Filing in Support of Plaintiffs' Expedited Motion for Leave to Take Two Additional Depositions and Compel Production of Related Documents# 3 Proposed Order Granting Plaintiffs' Expedited Motion for Leave to Take Two Additional Depositions and Compel Production of Related Documents)(Stowers, Dean) (Additional attachment(s) added on 5/20/2013: # 4 Declaration in Support of Motion) (Intern, mjk). (Entered: 08/23/2005)
Filing fee: $ 75.00, receipt number 72685 for Pro Hac admission for Michael E Lacy by Prison Fellowship Ministries (sk, ) (Entered: 08/19/2005)
250 TEXT ORDER granting 249 Motion for Leave to Appear Pro Hac Vice for Michael E Lacy . Entered by Marjorie Krahn, Clerk on 8/19/2005. (sk, ) (Entered: 08/19/2005)
249 MOTION for Leave to Appear Pro Hac Vice for Michael E Lacy for Prison Fellowship Ministries. (sk, ) (Entered: 08/19/2005)
248 MANDATE of USCA as to 216 Notice of Appeal, filed by Terry Mapes,, John Baldwin,, Walter Kautzky,, Innerchange Freedom Intiative Program,, Prison Fellowship Ministries,, Haywood Belle,, Frances Colston,, Robyn Mills,, Arthur Neu,, Suellen Overton,, Walter Reed, Jr, Donald Tietz,, Gary Maynard, Appeal is dismissed. (don, ) (Entered: 08/16/2005)
Filing fee: $ 150.00, receipt number 72657 for Pro Hac fee for Heather Weaver and Sara Rose by Sandra Sobotka, Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd (sk, ) (Entered: 08/15/2005)
247 AMENDED ORDER re 246 Order on Motion for Leave to Appear Pro Hac Vice, . Entered by Marjorie Krahn, Clerk on 8/4/2005. Amended to add attachments (Attachments: # 1 Attorney Registration form# 2 Credit Card Authorization form) (dv, ) (Entered: 08/04/2005)
246 ORDER granting 244 Motion for Leave to Appear Pro Hac Vice for Heather L. Weaver, granting 245 Motion for Leave to Appear Pro Hac Vice for Sara J. Rose . Entered by Marjorie Krahn, Clerk on 8/4/2005. (dv, ) (Entered: 08/04/2005)
245 MOTION for Leave to Appear Pro Hac Vice by Americans United for Separation of Church and State. (Stowers, Dean) (Entered: 08/02/2005)
244 MOTION for Leave to Appear Pro Hac Vice by Americans United for Separation of Church and State. (Stowers, Dean) (Entered: 08/02/2005)
243 TRANSCRIPT of Proceedings held on 7/19/05 before Judge Robert W. Pratt. Court Reporter: Theresa Kenkel. Page No(s).: 1−12. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 22 of 38

08/01/2005 08/01/2005 07/28/2005 07/28/2005 07/27/2005
07/27/2005
07/27/2005 07/25/2005 07/19/2005 07/11/2005 07/11/2005
07/11/2005 07/11/2005
07/08/2005 07/06/2005 07/06/2005 07/06/2005

CLERK'S OFFICE. (dv, ) (Additional attachment(s) added on 10/5/2011: # 1 Main Document) (sk, ). (Entered: 08/01/2005)
242 3−page Letter from Anthony F. Troy re trial scheduling (rmj) (Entered: 08/01/2005)
241 Letter from Alex Luchenitser re plaintiff's positions of trial scheduling. (rmj) (Entered: 08/01/2005)
240 ORDER granting 237 Motion Dismissing certain Defendants . Entered by Robert W. Pratt on 7/28/2005. (fm, ) (Entered: 07/28/2005)
239 ORDER SCHEDULING FINAL PRETRIAL CONFERENCE: Final Pretrial Conference set for 10/14/2005, 11:15 AM, before Magistrate Judge Thomas J. Shields. Entered by Thomas J. Shields on 7/28/2005. (dam) (Entered: 07/28/2005)
238 ORDER SETTING TRIAL AND/OR FINAL PRETRIAL CONFERENCE: Bench Trial set for 10/24/2005 09:00 AM in Room 265 − 2nd Floor before Judge Robert W. Pratt. Judge Shields shall schedule a final pretrial conference at his convenience. Entered by Robert W. Pratt on 7/27/2005. (rmj) (Entered: 07/27/2005)
237 Joint MOTION Dismissing Certain Defendants Joint Motion/Stipulation by All Parties Dismissing Certain Defendants and Proposed Order by Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr, Donald Tietz, Gary Maynard, Prison Fellowship Ministries, Terry Mapes, Walter Kautzky, John Baldwin. Responses due by 8/15/2005 (Wallace, H) (Entered: 07/27/2005)
236 Minute Entry for proceedings held before Judge Robert W. Pratt : Telephone Conference held on 7/27/2005. Begin: 2:05 p.m., end: 2:10 p.m. (Court Reporter Jackie Sinnott.) (jhm). (Entered: 07/27/2005)
235 STIPULATION of Dismissal of Request for Nominal Damages by Americans United for Separation of Church and State. (Stowers, Dean) (Entered: 07/25/2005)
234 Minute Entry for proceedings held before Judge Robert W. Pratt : Telephone Conference held on 7/19/2005. Begin: 9:15 a.m.; end: 9:30 a.m. (Court Reporter Theresa Kenkel.) (jhm). (Entered: 07/19/2005)
233 Letter from Gordon E. Allen. (jhm). (Entered: 07/12/2005)
232 ORDER SETTING STATUS CONFERENCE. The Court will hold a status conference, via telephone, July 19, 2005, at 9:00 a.m. central daylight time. Counsel for plaintiff shall arrange the conference call. The Court can be reached at (515) 284−6254. Entered by Robert W. Pratt on 7/11/2005. (mlm, ) (Entered: 07/11/2005)
231 ORDER denying 215 Motion to Amend/Correct, denying 221 Motion . Entered by Robert W. Pratt on 7/11/2005. (dv, ) (Entered: 07/11/2005)
230 USCA Case Number 05−2491 for 216 Notice of Appeal, filed by Terry Mapes,, John Baldwin,, Walter Kautzky,, Innerchange Freedom Intiative Program,, Prison Fellowship Ministries,, Haywood Belle,, Frances Colston,, Robyn Mills,, Arthur Neu,, Suellen Overton,, Walter Reed, Jr, Donald Tietz,, Gary Maynard,. (don, ) (Entered: 07/11/2005)
229 Letter from Alex J. Luchenitser. (jhm). (Entered: 07/08/2005)
228 Letter from Gordon E. Allen. (jhm). (Entered: 07/07/2005)
227 TEXT ORDER granting 225 Plaintiffs' Motion to File Overlength Brief. Plaintiffs are granted leave to file their overlength reply brief. Entered by Thomas J. Shields on 7/6/2005. (jeb) (Entered: 07/06/2005)
226 REPLY in Support of Plaintiffs' Motion to Certify Interlocutory Appeal as Frivolous and Dilatory, and to Retain Jurisdiction re 221 MOTION re 217 Status Conference,,,,,, filed by Americans United for Separation of Church and State. (Attachments: # 1 Declaration of Alex J. Luchenitser in Support of Plaintiffs' Reply

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 23 of 38

07/06/2005 06/30/2005 06/24/2005 06/24/2005 06/17/2005
06/16/2005 06/06/2005 06/02/2005
05/31/2005 05/26/2005

In Support of Motion to Certify Interlocutory Appeal as Frivolous and Dilatory, and to Retain Jurisdiction# 2 Exhibit A to the Declaration)(Stowers, Dean) (Entered: 07/06/2005)
225 MOTION to file overlength brief in support of Plaintiffs' Reply In Support of Motion to Certify Interlocutory Appeal as Frivolous and Dilatory, and to Retain Jurisdiction by Americans United for Separation of Church and State. Responses due by 7/25/2005 (Stowers, Dean) (Entered: 07/06/2005)
224 RESPONSE to Motion re 221 MOTION re 217 Status Conference,,,,,, filed by Prison Fellowship Ministries, Innerchange Freedom Intiative Program. Replies due by 7/13/2005. (Attachments: # 1 Exhibit A)(Appel, Brent) (Entered: 06/30/2005)
223 TRANSCRIPT of Proceedings held on 10/13/04 before Judge Robert W. Pratt. Court Reporter: Theresa Kenkel. Page No(s).: 182−226 Vol. II. THIS DOCUMENT IS NOT A PART OF THE ELECTRONIC CASE. ORIGINAL IS LOCATED IN THE CLERK'S OFFICE. (dv, ) (Additional attachment(s) added on 10/5/2011: # 1 Main Document) (sk, ). (Entered: 06/24/2005)
222 TRANSCRIPT of Proceedings held on 10/12/04 Summary Judgment Hearing before Judge Robert W. Pratt. Court Reporter: Theresa Kenkel. Page No(s).: 1−181 Vol. I. (dv, ) (Additional attachment(s) added on 11/9/2011: # 1 Transcript part 1, # 2 Transcript part 2) (don, ). (Entered: 06/24/2005)
221 MOTION re 217 Status Conference,,,,,, by Americans United for Separation of Church and State. Responses due by 7/5/2005 (Attachments: # 1 Plaintiffs' Memorandum of Points and Authorities in Support of Plaintiffs' Motion to Certify Interlocutory Appeal as Frivolous and Dilatory, and to Retain Jurisdiction# 2 Text of Proposed Order Granting Plaintiffs' Motion to Certify Interlocutory Appeal as Frivolous and Dilatory, and to Retain Jurisdiction)(Stowers, Dean) (Entered: 06/17/2005)
220 REPLY Memorandum in Support re 215 MOTION to Amend/Correct 212 Order on Motion for Summary Judgment,,,,,,,,, filed by Prison Fellowship Ministries, Innerchange Freedom Intiative Program. (Appel, Brent) (Entered: 06/16/2005)
219 RESPONSE to Motion re 215 MOTION to Amend/Correct 212 Order on Motion for Summary Judgment,,,,,,,,, filed by Americans United for Separation of Church and State. Replies due by 6/16/2005. (Stowers, Dean) (Entered: 06/06/2005)
218 USCA Scheduling Order as to 216 Notice of Appeal, filed by Terry Mapes,, John Baldwin,, Walter Kautzky,, Innerchange Freedom Intiative Program,, Prison Fellowship Ministries,, Haywood Belle,, Frances Colston,, Robyn Mills,, Arthur Neu,, Suellen Overton,, Walter Reed, Jr, Donald Tietz,, Gary Maynard,. Appeal Record due by 7/21/2005. Transcript due by 7/11/2005. (dv, ) (Entered: 06/06/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 216 Notice of Appeal, (gk, ) (Entered: 05/31/2005)
217 Minute Entry for proceedings held before Judge Thomas J. Shields : Status Conference held on 5/26/2005. (Shields, Thomas) The Court conducted a telephonic status conference pursuant to order on May 26, 2005. Alex J. Luchenitser and Dean Stowers appeared for plaintiffs. Assistant Iowa Attorneys General Gordon E. Allen and H. Lorraine Wallace appeared for the state defendants. Anthony Troy, Megan Rahman Conway and Brent J. Appel appeared for defendants Prison Fellowship Ministries and Innerchange Freedom Initiative Program. The Court had ordered the status conference pursuant to the order entered on April 29, 2005, by District Judge Robert W. Pratt (Clerk's No. 212), and in which he granted in part and denied in part motions for summary judgment filed by all parties. It had been anticipated when the status conference was ordered that a trial date would be selected. Subsequent to the order setting the status conference, all defendants filed a Motion to Amend the April 29, 2005 Order to Allow Immediate Interlocutory Appeal (Clerk's No. 215) on May 20, 2005, and then on May 24, 2005, all Defendants filed a Notice of Appeal to the Eighth Circuit Court of Appeals (Clerk's No. 216). As a result of the filing of the notice of appeal, the Court raised with counsel the issue as to whether this Court presently has

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 24 of 38

05/24/2005 05/24/2005
05/20/2005 05/17/2005 05/17/2005 04/29/2005
04/05/2005 03/03/2005
02/25/2005 02/25/2005
01/26/2005
01/26/2005
01/11/2005

jurisdiction. The parties disagree on this issue. Plaintiffs will file any motions on the jurisdictional issues on or before June 17, 2005. Defendants will file resistances on or before June 30, 2005. Any replies by plaintiffs will be filed on or before July 8, 2005. The Court will determine whether arguments need to be scheduled on this issue after review of any motions and resistances. (Entered: 05/26/2005)
Filing fee: $ 255.00, receipt number 71921 for Appeal Fee (gk/dv, ) (Entered: 05/27/2005)
216 NOTICE OF APPEAL as to 212 Order on Motion for Summary Judgment,,,,,,,,, by Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr, Donald Tietz, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, Walter Kautzky, John Baldwin. (Wallace, H) (Entered: 05/24/2005)
215 MOTION to Amend/Correct 212 Order on Motion for Summary Judgment,,,,,,,,, by Prison Fellowship Ministries, Innerchange Freedom Intiative Program. Responses due by 6/6/2005 (Appel, Brent) (Entered: 05/20/2005)
214 NUNC PRO TUNC ORDER Re Scheduling Conference . Entered by Thomas J. Shields on 5/17/2005. (dam, ) (Entered: 05/17/2005)
213 ORDER SETTING SCHEDULING CONFERENCE . Entered by Thomas J. Shields on 5/17/2005. (dam, ) (Entered: 05/17/2005)
212 ORDER granting in part and denying in part 92 Motion for Summary Judgment, granting in part and denying in part 96 Motion for Summary Judgment, denying 100 Motion for Summary Judgment, granting in part and denying in part 104 Motion for Summary Judgment, denying 172 Motion for Summary Judgment . Entered by Robert W. Pratt on 4/29/2005. (mlm, ) (Entered: 04/29/2005)
211 NOTICE by Prison Fellowship Ministries, Innerchange Freedom Intiative Program of Newly−Decided Authorities (Attachments: # 1 Exhibit A)(Appel, Brent) (Entered: 04/05/2005)
210 RESPONSE to Motion re 100 Motion for Summary Judgment, 104 Motion for Summary Judgment Defendants' Response to Plaintiffs' Second Notice of Newly Decided Authorities re: 208 filed by Haywood Belle, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Jr, Donald Tietz, Gary Maynard, Prison Fellowship Ministries, Innerchange Freedom Intiative Program, Terry Mapes, Walter Kautzky, John Baldwin. Replies due by 3/15/2005. (Schneider, Charles) (Entered: 03/03/2005)
209 Errata refiled− added signature line re 208 Notice (Other), Notice (Other) filed by Americans United for Separation of Church and State,. (Stowers, Dean) (Entered: 02/25/2005)
208 NOTICE by Americans United for Separation of Church and State re 100 Motion for Summary Judgment, 104 Motion for Summary Judgment Second Notice of Newly−Decided Authority in Support of Plaintiffs' Motion for Summary Judgment and in Opposition to Defendants' Motions for Summary Judgment (Stowers, Dean) (Entered: 02/25/2005)
207 TEXT ORDER granting 201 State Defendants' Motion to Amend Motion for Summary Judgment Regarding Mootness of Plaintiff Shelton's Claim. The motion is granted insofar as it amends the record regarding plaintiff Bilal Shukr's (a.k.a. Bobby Shelton) current status. Entered by Thomas J. Shields on 1/26/2005. (jeb) (Entered: 01/26/2005)
206 TEXT ORDER terminating 193 Motion to Amend/Correct. The Signed Version of Second Supplemental Declaration of Bilal Shukr was filed as Clerk's No. 197 and is a part of the record. Therefore, the identical pleading filed as a Motion to Amend/Correct 193 is moot and shall be terminated. Entered by Thomas J. Shields on 1/26/2005. (jeb) (Entered: 01/26/2005)
205 RESPONSE to Motion re 201 MOTION to Amend/Correct 172 Motion for Summary Judgment Regarding Mootness of Plaintiff Shelton's Claim filed by Americans United for Separation of Church and State. Replies due by 1/24/2005.

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 25 of 38

01/10/2005 01/10/2005 12/23/2004 12/23/2004
11/10/2004 11/05/2004
10/19/2004 10/16/2004 10/13/2004 10/13/2004

(Attachments: # 1 Appendix in Response to State Defendants' Motion to Amend Motion for Summary Judgment Regarding Mootness of Plaintiff Shelton's Claim# 2 Response to State Defendants' Supplemental Statement of Undisputed Material Facts Regarding Mootness of Plaintiff Shelton's Claim# 3 Statement of Additional Undisputed Material Facts in Response to State Defendants' Motion to Amend Motion for Summary Judgment Regarding Mootness of Plaintiff Shelton's Claim)(Stowers, Dean) (Entered: 01/11/2005)
204 TEXT ORDER granting 203 Plaintiffs' Unresisted Motion for Extension of Time to Respond to State Defendants' Motion to Amend Motion for Summary Judgment Regarding Mootness of Plaintiff Shelton's Claim. Plaintiffs shall have until January 21, 2005, to respond to State Defendants' Motion 201 . Entered by Thomas J. Shields on 1/10/2005. (jeb, ) (Entered: 01/10/2005)
203 Unresisted MOTION for Extension of Time to File Response to State Defendants' Motion to Amend Motion for Summary Judgment Regarding Mootness of Plaintiff Shelton's Claim by Americans United for Separation of Church and State. Responses due by 1/27/2005 (Stowers, Dean) (Entered: 01/10/2005)
202 CERTIFICATE OF SERVICE by John Baldwin, Haywood Belle, Frances Colston, Walter Kautzky, Terry Mapes, Gary Maynard, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed Jr, Donald Tietz re 201 MOTION to Amend/Correct 172 Motion for Summary Judgment Regarding Mootness of Plaintiff Shelton's Claim to Ayesha Khan and Anthony Troy (Wallace, H) (Entered: 12/23/2004)
201 MOTION to Amend/Correct 172 Motion for Summary Judgment Regarding Mootness of Plaintiff Shelton's Claim by John Baldwin, Haywood Belle, Frances Colston, Walter Kautzky, Terry Mapes, Gary Maynard, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed Jr, Donald Tietz. Responses due by 1/10/2005 (Attachments: # 1 Appendix Supplemental# 2 Supplement Statement of Undisputed Material Facts)(Wallace, H) (Entered: 12/23/2004)
200 NOTICE by John Baldwin, Haywood Belle, Innerchange Freedom Intiative Program, Walter Kautzky, Terry Mapes, Gary Maynard, Robyn Mills, Arthur Neu, Suellen Overton, Prison Fellowship Ministries, Walter Reed Jr re 199 Notice (Other), Notice (Other) (dv, ) (Entered: 11/15/2004)
199 NOTICE by Americans United for Separation of Church and State re 100 Motion for Summary Judgment, 104 Motion for Summary Judgment Of Newly−Decided Authorities in Support of Plaintiffs' Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment (Attachments: # 1 Exhibit Case in Support# 2 Exhibit Case in Support)(Stowers, Dean) (Entered: 11/05/2004)
198 ORDER denying 183 Motion to Bifurcate/Sever . Entered by Robert W Pratt on 10/19/2004. (mlm, )Plaintiffs' Motion to Bifurcate Nominal Damages/Qualified Immunity Issue, and to Hold State Defendants' Summary Judgment Motion on this Issue in Abeyance is DENIED. Modified on 10/22/2004 fixed typos(dv, ). (Entered: 10/19/2004)
Judge Thomas J Shields added. (dv, ) (Entered: 10/16/2004)
196 ORDER re 82 Motion to InterveneMotion to Quash filed by Christopher Lujan . Entered by Robert W Pratt on 10/13/2004. (mlm, ) Motion to intervene in order to quash subpoena #82 is denied as moot. (Entered: 10/13/2004)
195 Minute Entry for proceedings held before Judge Robert W Pratt: Motion Hearing held on 10/13/2004 re: 96 Motion for Summary Judgment filed by Terry Mapes, Iowa Department of Corrections, John Baldwin, Walter Kautzky, Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Donald Tietz, Gary Maynard, 172 Motion for Summary Judgment filed by Terry Mapes, John Baldwin, Walter Kautzky, Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Donald Tietz, Gary Maynard, 183 Motion to Bifurcate/Sever filed by Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd, 100 Motion for Summary Judgment filed by Terry Mapes, John Baldwin, Walter Kautzky, Innerchange Freedom Intiative Program, Prison Fellowship Ministries, Haywood Belle, Frances

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 26 of 38

10/12/2004
10/04/2004 10/04/2004 10/01/2004 10/01/2004 10/01/2004 10/01/2004 09/30/2004

Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Donald Tietz, Gary Maynard, 92 Motion for Summary Judgment filed by Terry Mapes, John Baldwin, Walter Kautzky, Innerchange Freedom Intiative Program, Prison Fellowship Ministries, Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Donald Tietz, Gary Maynard, 104 Motion for Summary Judgment filed by Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd, Sandra Sobotka. Parties presented oral argument on merits and qualified immunity issue. Matter fully submitted. (Court Reporter Theresa Kenkel.) (jhm, ) (Entered: 10/13/2004)
194 Minute Entry for proceedings held before Judge Robert W Pratt : Motion Hearing held on 10/12/2004 re: [96 Motion for Summary Judgment filed by Terry Mapes, Iowa Department of Corrections, John Baldwin, Walter Kautzky, Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Donald Tietz, Gary Maynard, 172 Motion for Summary Judgment filed by Terry Mapes, John Baldwin, Walter Kautzky, Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Donald Tietz, Gary Maynard, 100 Motion for Summary Judgment filed by Terry Mapes, John Baldwin, Walter Kautzky, Innerchange Freedom Intiative Program, Prison Fellowship Ministries, Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Donald Tietz, Gary Maynard, 92 Motion for Summary Judgment filed by Terry Mapes, John Baldwin, Walter Kautzky, Innerchange Freedom Intiative Program, Prison Fellowship Ministries, Haywood Belle, Frances Colston, Robyn Mills, Arthur Neu, Suellen Overton, Walter Reed, Donald Tietz, Gary Maynard, 104 Motion for Summary Judgment filed by Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd, Sandra Sobotka. Parties presented oral argument on plaintiff standing and the merits. Hearing to continue at 9:00 a.m. tomorrow. (Court Reporter Theresa Kenkel.) (jhm, ) (Entered: 10/13/2004)
197 SUPPLEMENTAL DECLARATION of of Bilal Shukr FOR PLAINTIFFS APPENDIX IN OPPOSITION TO STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT REGARDING MOOTNESS OF PLAINTIFF SHELTON'S CLAIM by Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd, Sandra Sobotka. (dv, ) (Entered: 10/13/2004)
193 MOTION to Amend/Correct (SIGNED VERSION OF SECOND SUPPLEMENTAL DECLARATION OF BILAL SHUKR FOR PLAINTIFFS APPENDIX IN OPPOSITION TO STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENTREGARDING MOOTNESS OF PLAINTIFF SHELTON'S CLAIM) by Americans United for Separation of Church and State, Carol Delp, Ardene McKeag, Dorothy Redd, Sandra Sobotka. Responses due by 10/21/2004 (dv, ) (Entered: 10/06/2004)
192 MEMORANDUM (APPENDIX)in Opposition to Motion re 96 Motion for Summary Judgment, 100 Motion for Summary Judgment, 92 Motion for Summary Judgment, 104 Motion for Summary Judgment filed by Americans United for Separation of Church and State. Replies due by 10/14/2004. (dv, ) (Entered: 10/06/2004)
191 RESPONSE to Motion re 172 Motion for Summary Judgment filed by Americans United for Separation of Church and State. Replies due by 10/14/2004. (dv, ) (Entered: 10/06/2004)
190 OBJECTIONS to 189 Statement of Material Facts by Americans United for Separation of Church and State. (dv, ) (Entered: 10/06/2004)
189 STATEMENT OF MATERIAL FACTS re 172 Motion for Summary Judgment, filed by Americans United for Separation of Church and State. (dv, ) (Entered: 10/06/2004)
188 REPLY BRIEF by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd re [183−1] motion to bifurcate nominal−damages/qualified−immunity before Judge Robert W. Pratt (don) (Entered: 09/30/2004)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 27 of 38

09/27/2004
09/21/2004
09/10/2004 09/08/2004 09/08/2004 09/08/2004 09/08/2004 09/08/2004 09/07/2004 09/07/2004
09/07/2004 09/07/2004 09/07/2004 09/07/2004 09/07/2004

187 MEMORANDUM by defendant Prison Fellowship, defendant Innerchange Freedom, defendant Terry Mapes, defendant Walter Kautzky, defendant John Baldwin, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu in opposition to motion to bifurcate nominal−damages/qualified−immunity before Judge Robert W. Pratt [183−1] (don) (Entered: 09/28/2004)
186 MOTION by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd to extend time to respond to state dfts' motion for s/j regarding mootness of Shelton's claim up to and including 10/01/04 and ORDER by Magistrate Judge Thomas J. Shields granting order motion [186−1] (cc: all counsel) (don) (Entered: 09/21/2004)
185 ERRATA by defendant Prison Fellowship, defendant Innerchange Freedom, defendant Terry Mapes, defendant Walter Kautzky, defendant John Baldwin, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu [152−1] (don) (Entered: 09/12/2004)
184 MEMORANDUM in support [183−1] of motion to bifurcate nominal−damages/qualified−immunity before Judge Robert W. Pratt (don) (Entered: 09/09/2004)
183 MOTION by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd to bifurcate nominal−damages/qualified−immunity before Judge Robert W. Pratt (don) (Entered: 09/09/2004)
182 REPLY BRIEF in support of s/j by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd re [104−1] motion for summary judgment before Judge Robert W. Pratt (don) (Entered: 09/08/2004)
181 ORDER by Magistrate Judge Thomas J. Shields granting motion to exceed page limitation for reply brief in support of palintiff's s/jbefore Magistrate Judge Thomas J. Shields [166−1] (cc: all counsel) (don) (Entered: 09/08/2004)
177 REPLY BRIEF in support by defendant re [100−1] motion for summary judgment before Judge Robert W. Pratt (don) (Entered: 09/08/2004)
180 REPLY BRIEF by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd re [142−1] motion of Amici States for leave to file memorandum as Amici Curiae before Judge Robert W. Pratt (don) (Entered: 09/08/2004)
179 MOTION by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd to exceed page limitation for reply brief and ORDER granting order motion by JRR, Clerk [179−1] re [142−1] motion of Amici States for leave to file memorandum as Amici Curiae before Judge Robert W. Pratt (cc: all counsel) SEE DOCKET ENTRY #178 (don) (Entered: 09/08/2004)
178 RESPONSE by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd [142−1] re: motion of Amici States for leave to file memorandum as Amici Curiae before Judge Robert W. Pratt (don) (Entered: 09/08/2004)
176 ORDER by Magistrate Judge Thomas J. Shields granting motion to exceed page limitation for reply brief in support of joint motion for s/j [161−1] (cc: all counsel) (don) (Entered: 09/08/2004)
175 APPENDIX filed [172−1] re: motion for summary judgment regarding mootness of plaintiff's Shelton's Claim before Judge Robert W. Pratt (don) (Entered: 09/07/2004)
174 STATEMENT of undisputed material facts [172−1] in support of motion for summary judgment regarding mootness of plaintiff's Shelton's Claim before Judge Robert W. Pratt (don) (Entered: 09/07/2004)
173 MEMORANDUM in support [172−1] of motion for summary judgment regarding mootness of plaintiff's Shelton's Claim before Judge Robert W. Pratt (don) (Entered: 09/07/2004)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 28 of 38

09/07/2004
09/03/2004
09/03/2004 09/03/2004 09/03/2004 09/03/2004 09/03/2004 09/03/2004 09/03/2004 09/03/2004 09/03/2004 09/03/2004
09/02/2004

172 MOTION by defendant Terry Mapes, defendant Walter Kautzky, defendant John Baldwin, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu, defendant Suellen Overton, defendant Walter Reed Jr, defendant Donald Tietz, defendant Gary Maynard for summary judgment regarding mootness of plaintiff's Shelton's Claim before Judge Robert W. Pratt (don) (Entered: 09/07/2004)
171 REPLY to dfts' response to pltfs' separate statement of undisputed material facts in support of motion for s/j by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd re [108−1] statement OVER 200 PAGES (don) Modified on 09/06/2004 (Additional attachment(s) added on 9/14/2012: # 1 transcript, # 2 transcript, # 3 transcript, # 4 transcript) (cc, ). (Additional attachment(s) added on 4/4/2013: # 5 Attachment) (Kaufmann, Michael). (Entered: 09/06/2004)
170 REPLY to dfts' response to pltfs' sepatate statement of undisputed facts (108) by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd re [133−1] response (don) (Entered: 09/06/2004)
169 SUPPLEMENTAL STATEMENT OF FACTS in support of pltfs' reply in support of motion for s/j by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd [107−1] to statement (don) (Entered: 09/06/2004)
168 SUPPLEMENTAL APPENDIX in support of relpy in support of plts' motion for s/j by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd [147−1] to documents (don) (Entered: 09/06/2004)
167 SUPPLEMENTAL APPENDIX in support of reply in support of plts' motion for s/j by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd [149−1] to documents UNDER SEAL (don) (Entered: 09/06/2004)
166 MOTION by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd to exceed page limitation for reply brief in support of palintiff's s/jbefore Magistrate Judge Thomas J. Shields (don) (Entered: 09/06/2004)
165 RESPONSE by defendant [148−1] re: statement of addtional undisputed facts in opposition to dfts' motion for s/j FILED UNDER SEAL (don) Modified on 09/03/2004 (Entered: 09/03/2004)
164 SUPPLEMENT by defendant [155−1] additional documents for appendix submitted with dfts' reply to pltfs' opposition to dfts' motion for s/j (don) Additional attachment(s) added on 4/12/2005 (ph, ). (Additional attachment(s) added on 5/15/2012: # 2 document) (jm, ). (Entered: 09/03/2004)
163 REPLY by defendant re [146−1] plaintiffs' responses to dfts' statement of undisputed material facts in support of dfts' joint motion for s/j (don) (Entered: 09/03/2004)
162 RESPONSE by defendant [155−1] re: to plaintiffs' statement of addition undisputed material facts in oppistion to dfts' joint motion for s/j (don) (Entered: 09/03/2004)
161 MOTION by defendant Prison Fellowship, defendant Innerchange Freedom, defendant Terry Mapes, defendant Walter Kautzky, defendant John Baldwin, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu to exceed page limitation for reply brief in support of joint motion for s/j before Magistrate Judge Thomas J. Shields (don) (Entered: 09/03/2004)
160 RESISTANCE by defendant Terry Mapes, defendant Walter Kautzky, defendant John Baldwin, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu to motion for summary judgment before Judge Robert W. Pratt [104−1] (don) (Entered: 09/02/2004)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 29 of 38

09/02/2004 09/02/2004 09/02/2004 08/26/2004 08/20/2004 08/20/2004 08/20/2004
08/20/2004 08/20/2004 08/20/2004 08/20/2004 08/20/2004 08/20/2004 08/20/2004 08/20/2004 08/20/2004 08/20/2004 08/20/2004
08/20/2004

159 RESISTANCE by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd to motion for summary judgment before Judge Robert W. Pratt [100−1] (don) (Entered: 09/02/2004)
158 ORDER by Magistrate Judge Thomas J. Shields granting motion to exceed page limitation in resistance to defendant's motion for summary judgment before [144−1] (cc: all counsel) (don) (Entered: 09/02/2004)
157 ORDER by Magistrate Judge Thomas J. Shields granting motion to exceed page limitation [153−1] (cc: all counsel) (don) (Entered: 09/02/2004)
FILING FEE PAID: on 8/26/04 in the amount of $ 75.00, receipt # 70181. PHV for Kevin C. Newsom (don) (Entered: 08/26/2004)
156 RESPONSE by defendants [148−1] re: statement of undisputed facts filed by plaintiff. UNDER SEAL (don) (Entered: 08/23/2004)
155 SUPPLEMENT Additional Documents for appendix (don) (Entered: 08/23/2004)
154 RESPONSE by defendant [145−1] re: statement of facts to plaintiffs s/j OVER 200 PAGES (don) Modified on 08/23/2004 (Additional attachment(s) added on 9/14/2012: # 1 Defendants response, # 2 response, # 3 response, # 4 response) (cc, ). (Entered: 08/23/2004)
153 MOTION by defendants brief to exceed page limitation before Magistrate Judge Thomas J. Shields (don) (Entered: 08/23/2004)
152 SUPPLEMENTAL Appendix by defendant [103−1] to documents (don) (Entered: 08/23/2004)
151 RESPONSE by defendant State of Iowa [22−1] re: reply separate statement of addiontal undisputed facts in opposition to state's motion for s/j (don) (Entered: 08/23/2004)
150 joint REPLY by defendants re [135−1] motion response to resistance to s/j (don) (Entered: 08/23/2004)
149 SUPPLEMENTAL APPENDIX in opposition to defendants' motion for summary judgment filed by plaintiff [100−1] before Judge Robert W. Pratt *Filed Under Seal* (fm) Modified on 08/23/2004 (Entered: 08/23/2004)
148 STATEMENT of undisputed facts in opposition by plaintiff [100−1] in opposition to defendants' motion for summary judgment before Judge Robert W. Pratt *Filed Under Seal* (fm) (Entered: 08/23/2004)
147 SUPPLEMENTAL APPENDIX filed by plaintiff [100−1] re: motion for summary judgment before Judge Robert W. Pratt (fm) (Entered: 08/23/2004)
146 RESPONSE by plaintiff [101−1] re: Defendants' statement of undisputed material facts in support of defendants' motion for summary judgment (fm) (Entered: 08/23/2004)
145 STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS in resistance to defendants' motion for summary judgment by plaintiffs (fm) (Entered: 08/23/2004)
144 MOTION by plaintiff Americans United to exceed page limitation in resistance to defendant's motion for summary judgment before Magistrate Judge Thomas J. Shields (fm) Modified on 08/23/2004 (Entered: 08/23/2004)
143 MEMORANDUM by defendant Prison Fellowship, defendant Innerchange Freedom in support [142−1] of motion of Amici States for leave to file memorandum as Amici Curiae before Judge Robert W. Pratt (don) (Entered: 08/20/2004)
142 MOTION by defendant Prison Fellowship, defendant Innerchange Freedom of Amici States for leave to file memorandum as Amici Curiae before Judge Robert W. Pratt (don) (Entered: 08/20/2004)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 30 of 38

08/20/2004 08/20/2004 08/17/2004 08/06/2004 08/06/2004 08/06/2004 08/06/2004 08/06/2004 08/03/2004 08/03/2004 08/03/2004 08/03/2004 08/03/2004 08/02/2004 07/27/2004 07/26/2004 07/26/2004
07/23/2004 07/21/2004 07/21/2004 07/21/2004 07/20/2004
07/19/2004

141 ORDER granting motion for attorney Kevin C. Newson to appear pro hac vice by JRR, Clerk [140−1] (cc: all counsel) (don) (Entered: 08/20/2004)
140 MOTION by defendant Prison Fellowship, defendant Innerchange Freedom for attorney Kevin C. Newson to appear pro hac vice (don) (Entered: 08/20/2004)
139 ERRATA by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd [108−1] (don) (Entered: 08/17/2004)
138 APPENDIX filed by plaintiff [135−1] re: motion response (gk) (Entered: 08/08/2004)
137 RESPONSE by plaintiff [97−1] re: statement (gk) (Entered: 08/08/2004)
136 STATEMENT by plaintiff [135−1] in support of motion response (gk) (Entered: 08/08/2004)
135 RESISTANCE by plaintiff to motion for summary judgment before Judge Robert W. Pratt [100−1] (gk) (Entered: 08/08/2004)
134 MOTION by plaintiff to exceed page limitation and ORDER granting motion [134−1] (cc: all counsel) (gk) (Entered: 08/08/2004)
133 RESPONSE by defendants [107−1] re: statement filed by plaintiffs s/j (don) (Entered: 08/04/2004)
132 SUPPLEMENTAL by defendant [103−1] to documents (Appendix for motion for s/j) (don) (Entered: 08/04/2004)
131 REPLY by defendants re [123−1] response by plaintiffs to dfts' statement of facts (don) (Entered: 08/04/2004)
130 SUPPLEMENTAL by defendants [101−1] to statement in support of s/j (don) (Entered: 08/04/2004)
129 REPLY BRIEF in support by defendant re [100−1] motion for summary judgment before Judge Robert W. Pratt (don) (Entered: 08/04/2004)
FILING FEE PAID: on 8/2/04 in the amount of $ 75.00, receipt # 70032. PHV for Richard Katskee (don) (Entered: 08/02/2004)
128 ORDER by Magistrate Judge Thomas J. Shields granting motion to extend briefing deadlines [125−1] (cc: all counsel) (dv) (Entered: 07/27/2004)
127 RESISTANCE by plaintiff to motion for summary judgment [100−1], [96−1], [92−1] (gk) (Entered: 07/26/2004)
126 ORDER by Magistrate Judge Thomas J. Shields granting motion to exceed page limitation for brief in opposition [122−1] (cc: all counsel) (gk) (Entered: 07/26/2004)
125 JOINT MOTION by plaintiff, defendant to extend briefing deadlines before Magistrate Judge Thomas J. Shields (gk) (Entered: 07/26/2004)
124 REPLY by defendant re [120−1] objection (gk) (Entered: 07/22/2004)
123 RESPONSE by plaintiff Americans United [107−1] re: statement (don) (Entered: 07/21/2004)
122 MOTION by plaintiff Americans United to exceed page limitation for brief in opposition before Magistrate Judge Thomas J. Shields (don) (Entered: 07/21/2004)
121 ORDER by Magistrate Judge Thomas J. Shields denying motion for relief from Rule 56.1(b)(2) Defendants shall have to and including 8/20/04 in which to file their responses[114−1] (cc: all counsel) (don) (Entered: 07/21/2004)
120 OBJECTIONS by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd to [114−1] motion for relief from Rule 56.1(b)(2) before Magistrate Judge Thomas J. Shields (don) (Entered: 07/19/2004)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 31 of 38

07/19/2004 07/19/2004 07/16/2004 07/16/2004 07/16/2004 07/16/2004 07/16/2004 07/14/2004
07/13/2004 07/12/2004
07/12/2004 07/12/2004
07/12/2004
07/12/2004 07/12/2004 07/12/2004
07/12/2004

119 ORDER granting motion for attorney Richard B. Katskee to appear pro hac vice, By JRR, Clerk [118−1] (cc: all counsel) (don) (Entered: 07/19/2004)
118 MOTION by plaintiff Americans United for attorney Richard B. Katskee to appear pro hac vice (don) (Entered: 07/19/2004)
117 MEMORANDUM by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd in support [104−1] of motion for summary judgment before Judge Robert W. Pratt (don) (Entered: 07/16/2004)
116 ORDER by Magistrate Judge Thomas J. Shields granting in part and denying in part motion to extend deadline to file opposition to motion for s/j, up to and including 07/25/04 [112−1] (cc: all counsel) (don) (Entered: 07/16/2004)
115 ORDER by Magistrate Judge Thomas J. Shields granting motion to exceed page limitation for brief in support of s/j [105−1] (cc: all counsel) (don) (Entered: 07/16/2004)
114 Joint MOTION by defendants for relief from Rule 56.1(b)(2) before Magistrate Judge Thomas J. Shields (don) (Entered: 07/16/2004)
113 MEMORANDUM by defendant in opposition to motion to extend deadline to file opposition to motion for s/j, up to and including 07/25/04 before Magistrate Judge Thomas J. Shields [112−1] (don) (Entered: 07/16/2004)
112 MOTION by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd to extend deadline to file opposition to motion for s/j, up to and including 07/25/04 before Magistrate Judge Thomas J. Shields (don) (Entered: 07/15/2004)
EXHIBITS [104−1] located with file (DVD's) (don) (Entered: 07/13/2004)
111 APPENDIX filed by plaintiff [104−1] re: motion for summary judgment before Judge Robert W. Pratt Volume II UNDER SEAL (don) Modified on 07/13/2004 (Additional attachment(s) added on 8/17/2012: # 1 appendix, # 2 appendix, # 3 appendix) (cc, ). (Additional attachment(s) added on 8/17/2012: # 4 Appendix, # 5 appendix, # 6 appendix, # 7 appendix, # 8 appendix, # 9 appendix) (cc, ). (Entered: 07/13/2004)
110 APPENDIX filed by plaintiff [104−1] re: motion for summary judgment before Judge Robert W. Pratt VOLUME I UNDER SEAL (don) Modified on 07/13/2004 (Entered: 07/13/2004)
109 APPENDIX filed by plaintiff [104−1] re: motion for summary judgment before Judge Robert W. Pratt 10 Volumes in expandable folders (don) (Additional attachment(s) added on 5/20/2013: # 1 Attachment (vol. 9)) (Intern, cn). (Entered: 07/13/2004)
108 SEPARATE STATEMENT of undisputed facts by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd, plaintiff Sandra Sobotka [104−1] in support of motion for summary judgment and in opposition of defts motion for s/j before Judge Robert W. Pratt (don) (Entered: 07/13/2004)
107 STATEMENT of undisputed facts by plaintiff [104−1] in support of motion for summary judgment before Judge Robert W. Pratt (don) (Entered: 07/13/2004)
106 SEALED STATEMENT by plaintiff [104−1] in support of motion for summary judgment before Judge Robert W. Pratt (don) (Entered: 07/13/2004)
105 MOTION by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd, plaintiff Sandra Sobotka to exceed page limitation for brief in support of s/j before Magistrate Judge Thomas J. Shields (don) Modified on 07/13/2004 (Entered: 07/13/2004)
104 MOTION by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd, plaintiff Sandra Sobotka for summary judgment before Judge Robert W. Pratt (don) (Additional attachment(s) added on 3/13/2012: # 1 appendix, # 2 appendix, # 3 appendix, # 4 appendix) (jm, ). (Additional

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 32 of 38

07/12/2004
07/12/2004 07/12/2004 07/12/2004
07/09/2004 07/09/2004 07/09/2004 07/09/2004 06/24/2004 06/24/2004 06/24/2004 06/24/2004 05/28/2004 05/06/2004

attachment(s) added on 3/14/2012: # 5 appendix vol 3 part 1, # 6 appendix vol 3 part 2, # 7 appendix vol 3 part 3, # 8 appendix vol 3 part 4, # 9 appendix vol 4 part 1, # 10 appendix vol 4 part 2, # 11 appendix vol 4 part 3, # 12 appendix vol 4 part 4, # 13 appendix vol 4 part 5) (jm, ). (Additional attachment(s) added on 3/14/2012: # 14 appendix vol 5 part 1, # 15 appendix vol 5 part 2, # 16 appendix vol 5 part 3, # 17 appendix vol 5 part 4, # 18 appendix vol 6 part 1, # 19 appendix vol 6 part 2, # 20 appendix vol 6 part 3, # 21 appendix vol 6 part 4) (jm, ). (Additional attachment(s) added on 3/14/2012: # 22 appendix vol 10 part 1, # 23 appendix vol 10 part 2, # 24 appendix vol 10 part 3) (jm, ). (Additional attachment(s) added on 8/17/2012: # 25 Appendix vol 9 of 10) (cc, ). (Additional attachment(s) added on 9/14/2012: # 26 vol 7, # 27 volume 7, # 28 volume 9, # 29 vol 9, # 30 vol 9) (cc, ). (Additional attachment(s) added on 4/16/2013: # 31 Appendix Attachment, # 32 Appendix Attachment, # 33 Appendix Attachment) (Kaufmann, Michael). (Additional attachment(s) added on 5/28/2013: # 34 Attachment) (Intern, mjk). (Entered: 07/13/2004)
103 APPENDIX filed by defendant [100−1] re: motion for summary judgment before Judge Robert W. Pratt over 200 pages. in brown expandable folder (don) Modified on 07/13/2004 (Additional attachment(s) added on 10/4/2011: # 1 APPENDIX Part I, # 2 APPENDIX Part II, # 3 APPENDIX Part III, # 4 APPENDIX Part IV) (internclk2, ). (Additional attachment(s) added on 8/17/2012: # 5 Appendix) (cc, ). (Entered: 07/13/2004)
102 MEMORANDUM by defendant in support [100−1] of motion for summary judgment before Judge Robert W. Pratt (don) (Entered: 07/13/2004)
101 STATEMENT of undisputed material facts by defendant [100−1] in support of motion for summary judgment before Judge Robert W. Pratt (don) Modified on 07/13/2004 (Entered: 07/13/2004)
100 MOTION by defendant Prison Fellowship, defendant Innerchange Freedom, defendant Terry Mapes, defendant Walter Kautzky, defendant John Baldwin, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu, defendant Suellen Overton, defendant Walter Reed Jr, defendant Donald Tietz, defendant Gary Maynard for summary judgment before Judge Robert W. Pratt (don) (Entered: 07/13/2004)
99 APPENDIX filed [96−1] re: motion for summary judgment before Judge Robert W. Pratt (don) (Entered: 07/09/2004)
98 MEMORANDUM in support [96−1] of motion for summary judgment before Judge Robert W. Pratt (don) (Entered: 07/09/2004)
97 STATEMENT of undosputed facts [96−1] in support of motion for summary judgment before Judge Robert W. Pratt (don) (Entered: 07/09/2004)
96 MOTION by defendant for summary judgment before Judge Robert W. Pratt (don) (Entered: 07/09/2004)
95 APPENDIX filed by defendant [92−1] re: motion for summary judgment before Judge Robert W. Pratt (dv) (Entered: 06/24/2004)
94 STATEMENT by defendant [92−1] in support of motion for summary judgment before Judge Robert W. Pratt (dv) (Entered: 06/24/2004)
93 MEMORANDUM by defendant in support [92−1] of motion for summary judgment before Judge Robert W. Pratt (dv) (Entered: 06/24/2004)
92 MOTION by defendant for summary judgment before Judge Robert W. Pratt (dv) (Entered: 06/24/2004)
91 ORDER by Magistrate Judge Thomas J. Shields ; Status hearing (MAG) satisfied , ; Dispositive Motion ddl set for 7/12/04 (cc: all counsel) (don) (Entered: 06/01/2004)
90 ORDER by Magistrate Judge Thomas J. Shields ; Status hearing (MAG) 05/27/04 1:30 pm (cc: all counsel) (don) (Entered: 05/06/2004)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 33 of 38

05/03/2004 05/03/2004 04/26/2004 04/23/2004 04/09/2004 04/06/2004 04/05/2004 04/05/2004 03/26/2004 03/08/2004 03/08/2004 03/08/2004 03/08/2004
03/04/2004 03/04/2004 02/25/2004
02/19/2004
02/19/2004

FILING FEE PAID: on 5/3/04 in the amount of $ 75.00, receipt # . PHV on Sandi Farrell (don) (Entered: 05/03/2004)
89 MOTION by plaintiff Americans United for attorney Sandi Farrell to appear pro hac vice and ORDER granting order motion By JRR, Clerk [89−1] (cc: all counsel) (don) (Entered: 05/03/2004)
88 RESPONSE by plaintiff Americans United [82−1] re: motion to intervene before Judge Robert W. Pratt, [82−2] re: motion to quash subpoena before Judge Robert W. Pratt (don) (Entered: 04/27/2004)
87 ORDER by Magistrate Judge Thomas J. Shields granting motion to compel additional depositions [73−1] (cc: all counsel) (don) (Entered: 04/23/2004)
86 ORDER by Magistrate Judge Thomas J. Shields granting motion for leave to take depositions [83−1] (cc: all counsel) (don) (Entered: 04/09/2004)
85 CERTIFICATE of service on motion for leave filed 04/05/04 by defendant Prison Fellowship, defendant Innerchange Freedom (don) (Entered: 04/06/2004)
84 TRANSCRIPT filed Hearing on 03/25/04 3:30 pm (don) (sk, ). (Entered: 04/05/2004)
83 Unopposed MOTION by defendant Prison Fellowship, defendant Innerchange Freedom for leave to take depositions before Magistrate Judge Thomas J. Shields (don) (Entered: 04/05/2004)
82 MOTION by movant Christopher Lujan to intervene before Judge Robert W. Pratt , to quash subpoena before Judge Robert W. Pratt (don) Modified on 03/26/2004 (Entered: 03/26/2004)
81 ORDER by Magistrate Judge Thomas J. Shields setting hearing on motion to compel additional depositions [73−1] 3:30 3/25/04 (cc: all counsel) (don) (Entered: 03/09/2004)
415 EXHIBITS FF to supplemental Declarations of Alex J Luchenitser #80 [80−1] located in sealed cabinet (don) (Intern, mjk). (Entered: 03/08/2004)
80 SUPPLEMENTAL by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd [79−1] to reply (don) (Entered: 03/08/2004)
79 REPLY in support by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd re [73−1] motion to compel additional depositions before Magistrate Judge Thomas J. Shields (don) (Entered: 03/08/2004)
78 DECLARATION of Peter A. Gilbert [77−1] re memorandum **Too large to scan and exh. M is sealed** (dv) Modified on 03/05/2004 (Additional attachment(s) added on 5/20/2013: # 1 Attachment) (Nagel, Claire). (Entered: 03/05/2004)
77 MEMORANDUM by defendant in opposition to motion to compel additional depositions before Magistrate Judge Thomas J. Shields [73−1] (dv) (Entered: 03/05/2004)
76 SUPPLEMENT exhibit DD by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd [73−1] to motion to compel additional depositions before Magistrate Judge Thomas J. Shields (don) (Entered: 02/25/2004)
75 DECLARATION of Alex Luchenitser exhibits B &CC are under seal by plaintiff Americans United [73−1] re motion to compel additional depositions before Magistrate Judge Thomas J. Shields OVER 200 PAGES (don) (Additional attachment(s) added on 5/20/2013: # 1 Attachment, # 2 Attachment) (Nagel, Claire). (Entered: 02/19/2004)
EXHIBITS [73−1] located sealed cabinet B &CC declaration (don) (Entered: 02/19/2004)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 34 of 38

02/19/2004 02/19/2004 02/09/2004 01/27/2004 01/15/2004 01/08/2004 10/10/2003
10/10/2003 10/10/2003 10/10/2003 10/09/2003 10/08/2003 10/06/2003 10/06/2003
10/03/2003 10/02/2003 10/02/2003 10/02/2003 10/02/2003

74 MEMORANDUM by plaintiff Americans United in support [73−1] of motion to compel additional depositions before Magistrate Judge Thomas J. Shields (don) (Entered: 02/19/2004)
73 MOTION by plaintiff Americans United to compel additional depositions before Magistrate Judge Thomas J. Shields (don) (Entered: 02/19/2004)
FILING FEE PAID: on 2/9/04 in the amount of $ 75.00, receipt # 68545. PHV on Robert A. Angle (don) (Entered: 02/09/2004)
72 LETTER to court from Scott A. Pickering regarding subpoena information (don) (Entered: 01/27/2004)
71 ORDER by Magistrate Judge Thomas J. Shields granting motion to extend disclosure of experts and discovery [70−1] ; Dispositive Motion ddl set for 6/14/04 ; Discovery ddl 04/19/04 (cc: all counsel) (don) (Entered: 01/15/2004)
70 Stipulation by all parties &MOTION (proposed order) by plaintiff, defendant, plaintiff, defendant, plaintiff to extend disclosure of experts and discovery before Magistrate Judge Thomas J. Shields (don) (Entered: 01/08/2004)
69 RESISTANCE by defendant Terry Mapes, defendant Walter Kautzky, defendant John Baldwin, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu to motion to clarify. (don) (Entered: 10/10/2003)
68 ORDER by Magistrate Judge Thomas J. Shields granting in part motion to clarify order re prison inspections SEE ORDER FOR PARTICULARS [56−1] (cc: all counsel) (don) (Entered: 10/10/2003)
67 Expedited REPLY by plaintiff Americans United re [56−1] motion to clarify order re prison inspections before Magistrate Judge Thomas J. Shields (don) (Entered: 10/10/2003)
66 SUPPLEMENT by plaintiff Americans United [59−1] to declaration (don) (Entered: 10/10/2003)
65 ORDER by Magistrate Judge Thomas J. Shields granting document proposed extending disclosure deadlines [60−1] (cc: all counsel) (don) (Entered: 10/09/2003)
64 OBJECTIONS by defendant Prison Fellowship, defendant Innerchange Freedom to [56−1] motion to clarify order re prison inspections before Magistrate Judge Thomas J. Shields (don) (Entered: 10/08/2003)
63 ORDER by Magistrate Judge Thomas J. Shields granting motion for leave to take deposition of prison inmate scott G. Foster [62−1] (cc: all counsel) (don) (Entered: 10/06/2003)
62 Unresisted MOTION by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd for leave to take deposition of prison inmate scott G. Foster before Magistrate Judge Thomas J. Shields (don) (Entered: 10/06/2003)
61 DECLARATION of Patrick Ingram. (cc: staff attys') (ld) (Entered: 10/03/2003)
60 PROPOSED order extending expert disclosure deadlines submitted by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd [53−1](don) Modified on 10/02/2003 (Entered: 10/02/2003)
59 DECLARATION of Alex J. Luchenitser [56−1] re motion to clarify before Magistrate Judge Thomas J. Shields (don) (Entered: 10/02/2003)
58 DECLARATION of Patrick Ingram [56−1] re motion to clarify before Magistrate Judge Thomas J. Shields (don) (Entered: 10/02/2003)
57 MEMORANDUM by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd in support [56−1] of motion to clarify before Magistrate Judge Thomas J. Shields (don) (Entered: 10/02/2003)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 35 of 38

10/02/2003
09/29/2003 09/17/2003 09/12/2003 09/10/2003
09/10/2003
09/04/2003
08/22/2003 08/21/2003 08/21/2003 08/21/2003
08/15/2003 08/08/2003 08/08/2003 08/08/2003 08/06/2003 08/04/2003 08/04/2003 08/04/2003

56 MOTION by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd to clarify order re prison inspections before Magistrate Judge Thomas J. Shields (don) Modified on 10/02/2003 (Entered: 10/02/2003)
55 STIPULATION &PROTECTIVE ORDER by Magistrate Judge Thomas J. Shields : (cc: all counsel) (don) (Entered: 09/30/2003)
54 TRANSCRIPT filed Status Conference held 08/06/03. 43 pages (don) (sk, ). (Entered: 09/18/2003)
53 ORDER by Magistrate Judge Thomas J. Shields Re: 8/6/03 Discovery Conf. SEE ORDER FOR SPECIFICS.. (cc: all counsel) (ld) (Entered: 09/12/2003)
52 ANSWER by defendant Terry Mapes, defendant Walter Kautzky, defendant John Baldwin, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu, defendant Suellen Overton, defendant Walter Reed Jr, defendant Donald Tietz, defendant Gary Maynard complaint [44−1] (don) (Entered: 09/10/2003)
51 ANSWER by defendant Walter Kautzky, defendant John Baldwin, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu, defendant Suellen Overton, defendant Walter Reed Jr, defendant Donald Tietz, defendant Gary Maynard complaint [46−1] (don) (Entered: 09/10/2003)
50 MOTION by plaintiff Americans United for Interrogatory and request for production of documents, regarding the confinement of Jerry Ashburn before Magistrate Judge Thomas J. Shields Expedited Response Requested (don) (Entered: 09/04/2003)
49 RESPONSE by defendant [45−1] re:supplemental filing (gk) (Entered: 08/22/2003)
48 ANSWER by defendant Prison Fellowship complaint [46−1] (gk) (Entered: 08/22/2003)
47 ANSWER by defendant Prison Fellowship complaint [44−1] (gk) (Entered: 08/22/2003)
46 2nd AMENDED COMPLAINT [1−1] by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd, plaintiff Sandra Sobotka This complaint effects the consolidated parties from 02−90447 &03−90101 (don) (Entered: 08/21/2003)
45 SUPPLEMENTAL filing re: prison inspection by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd (don) (Entered: 08/15/2003)
44 AMENDED COMPLAINT [1−1] by plaintiff; adding Sandra Sobotka (gk) (Additional attachment(s) added on 5/15/2012: # 1 additional documents, # 2 additional documents) (jm, ). (Entered: 08/08/2003)
43 ORDER by Magistrate Judge Thomas J. Shields granting motion to amend complaint and add parties [32−1] (cc: all counsel) (gk) (Entered: 08/08/2003)
42 RESPONSE by defendant [38−1] re: notice (gk) (Entered: 08/08/2003)
41 RESPONSE by defendant Prison Fellowship, defendant Innerchange Freedom [38−1] re: notice (don) (Entered: 08/06/2003)
FILING FEE PAID: on 8/4/03 in the amount of $ 75.00, receipt # 67003. Pro Hac Vice for Peter A. Gilbert (don) (Entered: 08/05/2003)
40 MOTION by defendant Prison Fellowship for attorney PETER A. GILBERT to appear pro hac vice and ORDER granting order motion By JRR, Clerk[40−1] (cc: all counsel) (don) (Entered: 08/05/2003)
39 REPLY in support of by plaintiff Americans United re [32−1] motion to amend complaint and add parties before Magistrate Judge Thomas J. Shields (don)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 36 of 38

08/04/2003 07/31/2003 07/30/2003
07/25/2003 07/15/2003 07/11/2003 07/11/2003 06/24/2003 06/23/2003 06/19/2003 06/18/2003 06/18/2003 06/11/2003 06/10/2003 06/04/2003 05/30/2003 05/29/2003 05/19/2003 05/12/2003

(Entered: 08/04/2003)
38 NOTICE Discovery conference statement for 8/06/03 by plaintiff Americans United copy to TJS (don) (Entered: 08/04/2003)
37 ORDER by Magistrate Judge Thomas J. Shields ; Status hearing by telephone (MAG) 08/06/03 2:00 pm (cc: all counsel) (don) (Entered: 07/31/2003)
36 RESPONSE by defendant Terry Mapes, defendant Walter Kautzky, defendant John Baldwin, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu, defendant Suellen Overton, defendant Walter Reed Jr, defendant Donald Tietz, defendant Gary Maynard [32−1] re: motion to amend complaint and add parties before Magistrate Judge Thomas J. Shields (don) (Entered: 07/30/2003)
35 RESPONSE by defendant Prison Fellowship, defendant Innerchange Freedom [32−1] re: motion to amend complaint and add parties before Magistrate Judge Thomas J. Shields (don) (Entered: 07/28/2003)
34 ATTORNEY APPEARANCE by GORDON E ALLEN for state defendants. (ld) (Entered: 07/15/2003)
33 MEMORANDUM by plaintiff in support [32−1] of motion to amend complaint and add parties before Magistrate Judge Thomas J. Shields (dv) (Entered: 07/14/2003)
32 MOTION by plaintiff to amend complaint and add parties before Magistrate Judge Thomas J. Shields (dv) (Entered: 07/14/2003)
31 RESPONSE by defendant Prison Fellowship, defendant Innerchange Freedom [30−1] re: motion response (don) (Entered: 06/24/2003)
30 RESISTANCE by Jason Grulkey (00−90634) to consolidate cases (don) (Entered: 06/23/2003)
29 RESPONSE by defendant Terry Mapes, defendant Walter Kautzky, defendant John Baldwin, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu [25−1] re: order (don) (Entered: 06/19/2003)
28 STATEMENT of Interest by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd (don) (Entered: 06/18/2003)
27 RESPONSE by plaintiff Americans United, plaintiff Carol Delp, plaintiff Ardene McKeag, plaintiff Dorothy Redd [25−1] re: order (don) (Entered: 06/18/2003)
26 ORDER by Magistrate Judge Thomas J. Shields ; Trial 10/12/04 9:00am est 10 days ; Final pretrial cnf (MAG) 10/01/04 10:00 am (cc: all counsel) (don) (Entered: 06/11/2003)
REMARK −− per order entered in 4:03−cv−90101 this date, (formerly 4:03−cv−40101) that case is consolidated into this case. (ld) (Entered: 06/10/2003)
25 ORDER by Judge Robert W. Pratt granting motion to consolidate cases [15−1] 4:03−cv−90074 (LEAD) with member case 4:02−cv−90447 −− see order for specifics... (cc: all counsel) (ld) (Entered: 06/05/2003)
24 ORDER Rule 16 scheduling conference by Magistrate Judge Thomas J. Shields ; In−court hearing (MAG) 06/10/03 1:15 pm (cc: all counsel) (don) (Entered: 06/02/2003)
23 STATEMENT of Interest LR 3.2 &81.1(c), (d), &(e) by defendant Prison Fellowship (don) (Entered: 05/30/2003)
PROPOSED SCHEDULING ORDER SUBMITTED by plaintiff, defendant, plaintiff, defendant; Report not adopted, referred to Magistrate Thomas Shields. (don) (Entered: 05/19/2003)
22 Concurrence in REPLY by defendant Terry Mapes, defendant Walter Kautzky re [15−1] motion to consolidate cases before Judge Robert W. Pratt (don) (Entered: 05/12/2003)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 37 of 38

05/09/2003 04/30/2003 04/18/2003 04/18/2003
04/18/2003 04/14/2003 04/14/2003 04/02/2003 04/02/2003
04/01/2003 04/01/2003 04/01/2003 04/01/2003 03/31/2003
03/17/2003 03/14/2003 03/12/2003 03/11/2003 02/13/2003

21 REPLY by defendant Prison Fellowship, defendant Innerchange Freedom re [20−1] response (don) (Entered: 05/09/2003)
20 RESPONSE by plaintiff Americans United [15−1] re: motion to consolidate cases before Judge Robert W. Pratt (don) (Entered: 05/01/2003)
19 SUPPLEMENT (Substitution of party) by defendant Gary Maynard [18−1] to answer (don) (Entered: 04/21/2003)
18 ANSWER by defendant Terry Mapes, defendant Walter Kautzky, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu, defendant Suellen Overton, defendant Walter Reed Jr, defendant Donald Tietz complaint [1−1] (don) (Entered: 04/21/2003)
17 ANSWER by defendant Prison Fellowship, defendant Innerchange Freedom complaint [1−1] (don) (Entered: 04/21/2003)
16 MEMORANDUM by defendant Prison Fellowship, defendant Innerchange Freedom in support [15−1] of motion to consolidate cases before Judge Robert W. Pratt (don) (Entered: 04/15/2003)
15 MOTION by defendant Prison Fellowship, defendant Innerchange Freedom to consolidate cases before Judge Robert W. Pratt (don) (Entered: 04/15/2003)
14 CERTIFICATE of Service notice of pro hac by defendant Prison Fellowship, defendant Innerchange Freedom (don) (Entered: 04/02/2003)
13 ORDER granting motion for attorney Megan C. Rahman to appear pro hac vice [12−1], granting motion for attorney Anthony F. Troy to appear pro hac vice [11−1], granting motion for attorney George A. Somerville to appear pro hac vice [10−1], granting motion for attorney Ashley L. Taylor Jr. to appear pro hac vice [9−1] By JRR, Clerk(cc: all counsel) (don) (Entered: 04/02/2003)
12 MOTION by defendant Prison Fellowship for attorney Megan C. Rahman to appear pro hac vice (don) (Entered: 04/02/2003)
11 MOTION by defendant Prison Fellowship for attorney Anthony F. Troy to appear pro hac vice (don) (Entered: 04/02/2003)
10 MOTION by defendant Prison Fellowship for attorney George A. Somerville to appear pro hac vice (don) (Entered: 04/02/2003)
9 MOTION by defendant Prison Fellowship for attorney Ashley L. Taylor Jr. to appear pro hac vice (don) (Entered: 04/02/2003)
8 RETURN OF SERVICE of summons and complaint, executed upon defendant Prison Fellowship, defendant Innerchange Freedom, defendant Terry Mapes, defendant Walter Kautzky, defendant John Baldwin, defendant IA Dept Corrections, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu, defendant Suellen Overton, defendant Walter Reed Jr, defendant Donald Tietz on 2/17/03 (don) (Entered: 03/31/2003)
7 ORDER by Magistrate Judge Thomas J. Shields granting motion to extend time to answer [5−1] −− Def' Prison Fellowship Ministries shall have to and including 4/18/03 in which to move or plead. (cc: all counsel) (ld) (Entered: 03/17/2003)
6 MOTION by defendant Innerchange Freedom to extend time to answer of plead before Magistrate Judge Thomas J. Shields (don) (Entered: 03/14/2003)
5 MOTION by defendant Prison Fellowship to extend time to answer before Magistrate Judge Thomas J. Shields (ld) (Entered: 03/13/2003)
Pro Hac Vice FILING FEE PAID: on 3/10/03 in the amount of $ 150.00, receipt # 65931. (For atty's Khan and Luchenitser) (ld) (Entered: 03/11/2003)
4 ORDER granting motion for attorneys' Alex J. Luchenitser and Ayesha N. Khan to appear pro hac vice [3−1] /s/JRR, Clerk (cc: all counsel) (ld) Modified on 02/13/2003 (Entered: 02/13/2003)

Case: 4:03-cv-90074 As of: 08/13/2013 02:05 PM CDT 38 of 38

02/12/2003 02/12/2003 02/12/2003 02/12/2003

FILING FEE PAID: on 2/12/03 in the amount of $ 150.00, receipt # 65756. (ld) (Entered: 02/13/2003)
3 MOTION by plaintiffs' for attorneys' Alex J. Luchenitser and Ayesha N. Khan to appear pro hac vice (ld) Modified on 02/13/2003 (Entered: 02/13/2003)
2 ATTORNEY APPEARANCE for plaintiffs' by Dean Stowers. (ld) Modified on 03/12/2003 (Entered: 02/13/2003)
1 COMPLAINT (Summons(es) issued) ; Rule 16 Dismissal Notice set for 6/12/03 ; Dismissal ddl (service) set for 6/12/03 (ld) (Entered: 02/13/2003)

 
 CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...

1983pr, CONSTR, TERMED
U.S. District Court United States District Court for the Southern District of Iowa (Central)
CIVIL DOCKET FOR CASE #: 4:02-cv-90447-RP-TJS

Ashburn v. Mapes, et al Assigned to: Chief Judge Robert W. Pratt Referred to: Magistrate Judge Thomas J. Shields Demand: $0 Lead case: 4:03-cv-90074-RP-TJS Member case: (View Member Case) Case in other court: Cause: 42:1983 Prisoner Civil Rights

Date Filed: 09/04/2002 Date Terminated: 03/08/2006 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Jerry Dean Ashburn

represented by Alex J Luchenitser AMERICANS UNITED 518 C ST NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: luchenitser@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dean A Stowers Rosenberg, Stowers & Morse 505 - 5th Avenue Insurance Exchange Building, Suite 1010 Des Moines, IA 50309 515 243 7600 Fax: 515 243 0583 Email: amy@rosenbergstowersmorse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ayesha N Khan AMERICANS UNITED 518 C ST NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: akhan@au.org

V. Defendant

1 of 9

6/20/2007 2:47 PM

CM/ECF - U.S. District Court:iasd - Docket Report
Terry Mapes Sued as: Terry D. Mapes
Defendant Kris Weitzell TERMINATED: 02/12/2003 Defendant Dennis E Potter TERMINATED: 02/12/2003 Defendant Scott Miller TERMINATED: 02/12/2003 Defendant Michelle Dix TERMINATED: 02/12/2003 Defendant Jeffrey Panknen TERMINATED: 02/12/2003 Defendant Bob Coady TERMINATED: 02/12/2003 Defendant Larry Lipscomb TERMINATED: 02/12/2003 Defendant Brenda Miller TERMINATED: 02/12/2003 Defendant Innerchange Freedom Intiative Program
2 of 9

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...
represented by H Loraine Wallace Department of Justice 1305 East Walnut Street Hoover State Office Building Des Moines, IA 50319 515 281 5319 Fax: 515 281 4902 Email: lwallac@ag.state.ia.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ashley L Taylor, JR TROUTMAN SANDERS LLP 1111 EAST MAIN STREET PO BOX 1122
6/20/2007 2:47 PM

CM/ECF - U.S. District Court:iasd - Docket Report
Defendant John Mathes TERMINATED: 02/12/2003 Defendant Walter Kautzky TERMINATED: 02/12/2003
3 of 9

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...
RICHMOND, VA 23218-1122 804 697 1286 Fax: 804 698 6018 Email: ashley.taylor@troutmansanders.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brent R Appel Wandro, Baer, Appel & Casper, PC 2501 Grand Avenue, Suite B Des Moines, IA 50312 515 281 1475 Fax: 515 281 1474 Email: bappel@2501grand.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony F Troy TROUTMAN SANDERS LLP 1111 EAST MAIN STREET PO BOX 1122 RICHMOND, VA 23218-1122 804 697 1318 Fax: 804 698 5162 Email: tony.troy@troutmansanders.com
George A Somerville TROUTMAN SANDERS LLP PO BOX 1122 RICHMOND, VA 23218-1122 Fax: 8046986018
Megan Conway Rahman TROUTMAN SANDERS LLP 1001 HAXALL POINT (23219) PO BOX 1122 RICHMOND, VA 23218-1122 804 697 1374 Fax: 804 698 5178 Email: megan.rahman@troutmansanders.com
6/20/2007 2:47 PM

CM/ECF - U.S. District Court:iasd - Docket Report
Defendant John Doe TERMINATED: 02/12/2003
Defendant Jane Doe TERMINATED: 02/12/2003
Defendant John Baldwin in his official capacity as Acting Director of the Iowa Department of the Iowa Department of Corrections and in his individual capacity
Defendant Iowa Department of Corrections Sued as: John Doe, in his official capacity as Director of the Iowa Department of Corrections and in his individual capacity, Now filed under Gary Maynard TERMINATED: 04/18/2003
Defendant Haywood Belle in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant Frances Colston in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant Robyn Mills in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant Arthur Neu in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant
4 of 9

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...
represented by H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
6/20/2007 2:47 PM

CM/ECF - U.S. District Court:iasd - Docket Report
Suellen Overton in official capacity as member of the Iowa Board of Corrections and in individual capacity Defendant Walter Reed, Jr in official capacity as member of the Iowa Board of Corrections and in individual capacity Defendant Donald Tietz in official capacity as member of the Iowa Board of Corrections and in individual capacity Defendant Prison Fellowship Ministries
Defendant
5 of 9

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...
represented by H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ashley L Taylor, JR (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brent R Appel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Edward Lacy Troutman Sanders LLP 1001 Haxall Point P O Box 1122 Richmond, VA 23219 804 697 1326 Fax: 804 698 6061 Email: michael.lacy@troutmansanders.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony F Troy (See above for address)
George A Somerville (See above for address)
Megan Conway Rahman (See above for address)
6/20/2007 2:47 PM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...

Gary Maynard

represented by H Loraine Wallace (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/04/2002 09/16/2002 09/19/2002 09/19/2002 09/23/2002 09/23/2002 09/23/2002 09/23/2002 09/26/2002 10/01/2002
10/31/2002

#

Docket Text

1 COMPLAINT (cc: pltf(s) & staff attys'). (Rec'd with no filing fee or motion for IFP) (ld) (Entered: 09/05/2002)
2 ORDER by Judge Robert W. Pratt re [1-1] -- plntf' to submit required financial information within 30 days. Complaint filed for purpose of making a record. (cc: all counsel) (ld) (Entered: 09/16/2002)
3 MOTION by plaintiff Jerry Dean Ashburn for reconsideration and further review by this Honorable Court before Judge Robert W. Pratt (ld) (Entered: 09/20/2002)
4 MOTION by plaintiff Jerry Dean Ashburn to proceed in forma pauperis and declaration in support before Judge Robert W. Pratt (ld) (Entered: 09/20/2002)
5 MOTION by plaintiff Jerry Dean Ashburn to proceed in forma pauperis before Judge Robert W. Pratt cc: Ashburn (don) Modified on 09/24/2002 (Entered: 09/24/2002)
6 FORM D: AUTHORIZATION TO DEBIT TRUST ACCOUNT TO PAY FEDERAL COURT FILING FEE by plaintiff Jerry Dean Ashburn re [2-1] order cc: Ashburn (don) Modified on 09/24/2002 (Entered: 09/24/2002)
7 FORM C: CERTIFICATE OF INMATE ACCOUNT AND ASSETS by plaintiff Jerry Dean Ashburn re [2-1] order cc:Ashburn (don) Modified on 09/24/2002 (Entered: 09/24/2002)
8 MOTION by plaintiff Jerry Dean Ashburn for injunctive order before Judge Robert W. Pratt cc: Ashburn (don) Modified on 09/24/2002 (Entered: 09/24/2002)
9 MOTION by plaintiff Jerry Dean Ashburn for injunctive order before Judge Robert W. Pratt (dv) (Entered: 09/26/2002)
10 ORDER by Judge Robert W. Pratt denying motion for injunctive order Pratt [9-1], denying motion for injunctive order [8-1], granting motion to proceed in forma pauperis [5-1], granting motion to proceed in forma pauperis and declaration in support [4-1], denying motion for reconsideration and further review by this Honorable Court [3-1] Clerk is directed to appoint counsel (cc: all counsel, Mears, Mapes, Weitzell, Potter, Miller, Dix, Panken, Coady, Libscomb, Miller, Mathes, Kautzky) (don) Modified on 10/02/2002 (Entered: 10/02/2002)
11 ORDER by Magistrate Judge Celeste F. Bremer re [10-1] -- on its' own motion, the court grants plntfs' counsel unitl 11/29/02 to file an appearance. (cc: all counsel) (ld) (Entered: 11/01/2002)

6 of 9

6/20/2007 2:47 PM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...

11/08/2002 11/19/2002 12/10/2002
02/12/2003 02/12/2003 02/12/2003 02/12/2003 02/12/2003 02/12/2003 02/12/2003 02/14/2003
03/11/2003 03/12/2003 03/14/2003 03/17/2003
03/28/2003
04/01/2003

FILING FEE PAID: on 10/15/02 in the amount of $ 12.25, receipt # 64938. (Balance due; $137.75) (ld) (Entered: 11/08/2002)
FILING FEE PAID: on 11/14/02 in the amount of $ 9.05, receipt # 65149. (Balance due; $128.70) (ld) (Entered: 11/19/2002)
12 ORDER by Magistrate Judge Celeste F. Bremer -- plntf' granted to 2/15/03 to enter appearance and file amended complaint. Def' granted to 3/15/03 to file answer or responsive pleading. (cc: all counsel) (ld) (Entered: 12/10/2002)
SUMMONS issued as to defs' this date. (ld) (Entered: 02/14/2003)
13 MOTION by plaintiff for attorney Alex J. Luchenitser to appear pro hac vice (ld) (Entered: 02/14/2003)
14 MOTION by plaintiff for attorney Ayesha N.Khan to appear pro hac vice (ld) (Entered: 02/14/2003)
15 ATTORNEY APPEARANCE for plaintiff by DEAN A STOWERS (ld) (Entered: 02/14/2003)
16 ATTORNEY APPEARANCE for plaintiff by Ayesha N. Khan. (ld) (Entered: 02/14/2003)
17 ATTORNEY APPEARANCE for plaintiff by Alex J. Luchenitser. (ld) (Entered: 02/14/2003)
18 First AMENDED COMPLAINT by plaintiff Jerry Dean Ashburn (ld) (Entered: 02/28/2003)
19 ORDER granting motion for attorney Ayesha N.Khan [14-1],and Alex J. Luchenitser to appear pro hac vice [13-1] /s/JRR, Clerk (cc: all counsel) (ld) (Entered: 02/14/2003)
Pro Hac Vice FILING FEE PAID: on 3/10/03 in the amount of $ 150.00, receipt # 65931. (For Attys' Khan and Luchenitser) (ld) (Entered: 03/11/2003)
20 MOTION by defendant Prison Fellowship to extend time to answer before Magistrate Judge Thomas J. Shields (ld) (Entered: 03/13/2003)
21 MOTION by defendant Innerchange Freedom to extend time to answer or plead before Magistrate Judge Thomas J. Shields (don) (Entered: 03/14/2003)
22 ORDER by Magistrate Judge Thomas J. Shields granting motion to extend time to answer [20-1] -- def' Fellowship Ministries shall file any motion and/or answer on or before 4/18/03. (cc: all counsel) (ld) (Entered: 03/17/2003)
23 RETURN OF SERVICE of summons and complaint, executed upon defendant Terry Mapes, defendant Innerchange Freedom, defendant John Baldwin, defendant IA Dept Corrections, defendant Haywood Belle, defendant Frances Colston, defendant Robyn Mills, defendant Arthur Neu, defendant Suellen Overton, defendant Walter Reed Jr, defendant Donald Tietz, defendant Prison Fellowship on 2/17/03 (don) (Entered: 03/31/2003)
24 MOTION by defendant Prison Fellowship for attorney Ashley L. Taylor Jr. to appear pro hac vice before (don) (Entered: 04/02/2003)

7 of 9

6/20/2007 2:47 PM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...

04/01/2003 04/01/2003 04/01/2003 04/02/2003
04/02/2003 04/18/2003 04/18/2003 04/18/2003 04/24/2003 04/29/2003 05/19/2003 05/19/2003 05/30/2003 06/04/2003

25 MOTION by defendant Prison Fellowship for attorney George A. Somerville to appear pro hac vice (don) (Entered: 04/02/2003)
26 MOTION by defendant Prison Fellowship for attorney Anthony F. Troy to appear pro hac vice (don) (Entered: 04/02/2003)
27 MOTION by defendant Prison Fellowship for attorney Megan C. Rahman to appear pro hac vice (don) (Entered: 04/02/2003)
28 ORDER granting motion for attorney Megan C. Rahman to appear pro hac vice [27-1], granting motion for attorney Anthony F. Troy to appear pro hac vice [26-1], granting motion for attorney George A. Somerville to appear pro hac vice [25-1], granting motion for attorney Ashley L. Taylor Jr. to appear pro hac vice before [24-1] By JRR, Clerk (cc: all counsel) (don) (Entered: 04/02/2003)
29 CERTIFICATE by defendant, notice of pro hac Innerchange Freedom, defendant Prison Fellowship (don) (Entered: 04/02/2003)
30 ANSWER by defendant Innerchange Freedom, defendant Prison Fellowship complaint [18-1] (don) (Entered: 04/21/2003)
31 ANSWER by defendant Terry Mapes, defendant John Baldwin, defendant Haywood Belle, defendant Suellen Overton, defendant Walter Reed Jr, defendant Donald Tietz complaint [18-1] (don) (Entered: 04/21/2003)
32 SUPPLEMENT(substitution of Party) by defendant Gary Maynard [31-1] to answer (don) (Entered: 04/21/2003)
33 ORDER by Judge Robert W. Pratt ; Dispositive Motion ddl set for 8/29/03 (cc: all counsel) (ld) (Entered: 04/24/2003)
35 STATEMENT of Interest required by LR 3.2 & 81.1 (c), (d), and (e) by defendant Innerchange Freedom (don) (Entered: 05/30/2003)
PROPOSED SCHEDULING ORDER SUBMITTED by plaintiff Jerry Dean Ashburn, defendant Terry Mapes ; Report not adopted, referred to Magistrate Thomas Shields. (don) Modified on 05/19/2003 (Entered: 05/19/2003)
34 MOTION by plaintiff Jerry Dean Ashburn, defendant Terry Mapes to vacate Court order of 04/24/03 before Judge Robert W. Pratt (don) (Entered: 05/19/2003)
36 ORDER Rule 16 scheduling conference by Magistrate Judge Thomas J. Shields ; In-court hearing (MAG) 06/10/03 1:15 pm (cc: all counsel) (don) (Entered: 06/02/2003)
REMARK -- case consolidated with lead case 4:03-cv-90074, ALL FUTURE FILINGS TO BE IN LEAD CASE... (ld) (Entered: 06/05/2003)

PACER Service Center
Transaction Receipt

8 of 9

6/20/2007 2:47 PM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...

06/20/2007 14:45:19

PACER Login:

hs0328

Client Code:

eeoc

Description:

Docket Report

Search Criteria:

4:02-cv-90447-RP-TJS Start date: 1/1/1970 End date: 6/20/2007

Billable

5

Pages:

Cost:

0.40

9 of 9

6/20/2007 2:47 PM

 
 CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...

1983pr, CONSTR, TERMED
U.S. District Court United States District Court for the Southern District of Iowa (Central)
CIVIL DOCKET FOR CASE #: 4:03-cv-90101-RP-TJS

Shelton, et al v. Kautzky Assigned to: Chief Judge Robert W. Pratt Referred to: Magistrate Judge Thomas J. Shields Demand: $0 Lead case: 4:03-cv-90074-RP-TJS Member case: (View Member Case) Cause: 42:1983 Prisoner Civil Rights

Date Filed: 02/24/2003 Date Terminated: 03/08/2006 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff
Bobby Shelton also known as Bilal Shukr

represented by Alex J Luchenitser AMERICANS UNITED 518 C ST NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: luchenitser@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ayesha N Khan AMERICANS UNITED 518 C ST NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: akhan@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dean A Stowers Rosenberg, Stowers & Morse 505 - 5th Avenue Insurance Exchange Building, Suite 1010 Des Moines, IA 50309 515 243 7600 Fax: 515 243 0583 Email: amy@rosenbergstowersmorse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Lynn Weaver Americans United

1 of 3

6/20/2007 2:56 PM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...

V. Defendant W L Kautzky

518 C STREET NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: weaver@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard B Katskee AMERICANS UNITED 518 C ST NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: katskee@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Jeannette Rose Americans United 518 C STREET NE WASHINGTON, DC 20002 202 466 3234 Fax: 202 466 2587 Email: rose@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed
02/24/2003 02/28/2003
03/31/2003 04/02/2003
04/07/2003

#

Docket Text

1 COMPLAINT (cc: pltf(s)). (dv) (Entered: 02/24/2003)
2 ORDER by Judge James E. Gritzner: *See order for particulars* (cc: all counsel) (dv) (Entered: 02/28/2003)
3 DEMAND FOR JURY TRIAL by plaintiff Bilal Shukr (dv) (Entered: 03/31/2003)
4 FORM C: CERTIFICATE OF INMATE ACCOUNT AND ASSETS by plaintiff Bilal Shukr re [2-1] order (dv) (Entered: 04/02/2003)
5 MOTION by plaintiff Bilal Shukr to amend complaint before Magistrate Judge Celeste F. Bremer (dv) (Entered: 04/07/2003)

2 of 3

6/20/2007 2:56 PM

CM/ECF - U.S. District Court:iasd - Docket Report

https://ecf.iasd.uscourts.gov/cgi-bin/DktRpt.pl?935666057822708-L_3...

04/07/2003
04/08/2003 04/18/2003 05/06/2003 05/30/2003 06/10/2003 06/10/2003 10/23/2004

6 INITIAL REVIEW ORDER by Judge James E. Gritzner -- The clerk is directed to send a copy of this complaint to counsel representing plntfs' in Ashburn, 4:02-cv-90447, along with a copy of this order. Counel in Ashburn shall report to the Court within 30 days of this order as to whether htis law suit could and/or should be consolidated with Ashburn. Service of process is stayed until Ashburn counsel has repsonded. (cc: all counsel) (ld) (Entered: 04/08/2003)
REMARK -- mailed copy of IRO from 4/8/03 & complaint in 4:02-cv-90447 this date to plntfs' counsel in 4:02-cv-90447, Dean A. Stowers & Alex J. Luchenitser. (ld) (Entered: 04/08/2003)
7 ORDER by Judge James E. Gritzner denying motion to amend complaint [5-1] (cc: all counsel) (dv) (Entered: 04/18/2003)
8 MOTION by plaintiff Bilal Shukr to extend time to respond to IRO up to and including 05/30/03 and ORDER granting order motion By JRR, CLerk [8-1] (cc: all counsel) (don) (Entered: 05/07/2003)
9 RESPONSE [6-1] re: order (dv) (Entered: 06/02/2003)
10 ORDER by Judge James E. Gritzner consolidating cases 4:03-cv-90074 with member cases 4:03-cv-90101 (cc: all counsel) (ld) (Entered: 06/10/2003)
REMARK -- all further pleadings to be filed in Lead Case 4:03-cv-90074. (ld) (Entered: 06/10/2003)
Judge Thomas J. Shields added. (fm, ) (Entered: 10/23/2004)

PACER Service Center

Transaction Receipt

06/20/2007 14:56:08

PACER Login:

hs0328 Client

eeoc

Code:

Docket Description: Report

Search Criteria:

4:03-cv-90101-RP-TJS Start date: 1/1/1970 End date: 6/20/2007

Billable

2

Pages:

Cost:

0.16

3 of 3

6/20/2007 2:56 PM

 
 1/6/2018

06-2741 Docket

General Docket Eighth Circuit Court of Appeals

Court of Appeals Docket #: 06­2741 Nature of Suit: 3440 Other Civil Rights Americans United, et al v. Prison Fellowship, et al Appeal From: U.S. District Court for the Southern District of Iowa ­ Des Moines Fee Status: paid ­ cs

Case Type Information: 1) Civil 2) Private 3) null

Originating Court Information: District: 0863­4 : 4:03­cv­90074­RP Court Reporter: Theresa Kenkel Trial Judge: Robert W. Pratt, U.S. District Judge Date Filed: 02/12/2003 Date Order/Judgment: 06/05/2006

Date NOA Filed: 06/29/2006

Prior Cases: 05­2491 Date Filed: 06/01/2005 Date Disposed: 08/11/2005 Disposition: Dismissed

Current Cases: None

Docketed: 06/30/2006 Termed: 12/03/2007

Americans United For Separation of Church and State Plaintiff ­ Appellee
https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

Richard Brian Katskee Direct: 202­466­3234 [COR LD NTC Retained] AMERICANS UNITED FOR SEPARATION OF CHURCH & STATE Firm: 202­466­3234 Suite 400 1901 L Street, N.W. Washington, DC 20036
Ayesha N. Khan Direct: 202­836­7136 [COR LD NTC Retained] POTOMAC LAW GROUP Suite 700 1300 Pennsylvania Avenue, N.W. Washington, DC 20004
Alexander Joseph Luchenitser Direct: 202­466­3234 [COR LD NTC Retained] AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Suite 200 1310 L Street, N.W. Washington, DC 20005
Dean Alan Stowers Direct: 515­224­7446 [COR LD NTC Retained] STOWERS & SARCONE Firm: 515­224­7446 Suite 130 650 S. Prairie View Drive West Des Moines, IA 50266
Heather L. Weaver Direct: 202­466­3234 [COR LD NTC Retained] AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC. Second Floor
1/23

1/6/2018

06-2741 Docket
915 15th Street, N.W. Washington, DC 20005

Carol Delp Plaintiff ­ Appellee

Richard Brian Katskee Direct: 202­466­3234 [COR LD NTC Retained] (see above)

Ayesha N. Khan Direct: 202­836­7136 [COR LD NTC Retained] (see above)

Alexander Joseph Luchenitser Direct: 202­466­3234 [COR LD NTC Retained] (see above)

Dean Alan Stowers Direct: 515­224­7446 [COR LD NTC Retained] (see above)

Heather L. Weaver Direct: 202­466­3234 [COR LD NTC Retained] (see above)

Ardene McKeag Plaintiff ­ Appellee

Richard Brian Katskee Direct: 202­466­3234 [COR LD NTC Retained] (see above)

Ayesha N. Khan Direct: 202­836­7136 [COR LD NTC Retained] (see above)

Alexander Joseph Luchenitser Direct: 202­466­3234 [COR LD NTC Retained] (see above)

Dean Alan Stowers Direct: 515­224­7446 [COR LD NTC Retained] (see above)

Heather L. Weaver Direct: 202­466­3234 [COR LD NTC Retained] (see above)

Dorothy Redd Plaintiff ­ Appellee

Richard Brian Katskee Direct: 202­466­3234 [COR LD NTC Retained] (see above)

Ayesha N. Khan Direct: 202­836­7136 [COR LD NTC Retained] (see above)

Alexander Joseph Luchenitser Direct: 202­466­3234 [COR LD NTC Retained] (see above)

Dean Alan Stowers Direct: 515­224­7446

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

2/23

1/6/2018
Sandra Sobotka Plaintiff ­ Appellee
v.

06-2741 Docket
[COR LD NTC Retained] (see above)
Heather L. Weaver Direct: 202­466­3234 [COR LD NTC Retained] (see above)
Richard Brian Katskee Direct: 202­466­3234 [COR LD NTC Retained] (see above)
Alexander Joseph Luchenitser Direct: 202­466­3234 [COR LD NTC Retained] (see above)
Dean Alan Stowers Direct: 515­224­7446 [COR LD NTC Retained] (see above)
Heather L. Weaver Direct: 202­466­3234 [COR LD NTC Retained] (see above)

Prison Fellowship Ministries Defendant ­ Appellant

Robert A. Angle Direct: 804­697­1200 [COR LD NTC Retained] TROUTMAN & SANDERS Firm: 804­697­1200 P.O. Box 1122 Richmond, VA 23218­0000

Brent R. Appel Direct: 515­281­1475 [COR LD NTC Retained] WANDRO & ASSOCIATES Suite B 2501 Grand Avenue Des Moines, IA 50312­0000

Derek L. Gaubatz [COR LD NTC Retained] Firm: 202­955­0098 Suite 605 1350 Connecticut Avenue, N.W. Washington, DC 20036­0000

Peter A. Gilbert Direct: 804­697­1284 [COR LD NTC Retained] TROUTMAN & SANDERS Firm: 804­697­1200 P.O. Box 1122 Richmond, VA 23218­0000

Michael Edward Lacy Direct: 804­697­1200 [COR LD NTC Retained] TROUTMAN & SANDERS 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308­2216

Jared N. Leland

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

3/23

1/6/2018

06-2741 Docket
Direct: 202­955­0098 [COR LD NTC Retained] BECKET FUND FOR RELIGIOUS LIBERTY Suite 605 1350 Connecticut Avenue, N.W. Washington, DC 20036­0000

Kevin Christopher Newsom Direct: 205­521­8803 [COR LD NTC Retained] BRADLEY & ARANT Firm: 205­521­8000 One Federal Place 1819 Fifth Avenue, N. Birmingham, AL 35203­2119

Anthony R. Picarello, Jr., General Counsel Direct: 202­541­3300 [COR LD NTC Retained] U.S. CONFERENCE OF CATHOLIC BISHOPS 3211 Fourth Street, N.E. Washington, DC 20017

Megan Conway Rahman Direct: 804­697­1374 [COR LD NTC Retained] TROUTMAN & SANDERS Firm: 804­697­1200 P.O. Box 1122 Richmond, VA 23218­0000

Eric C. Rassbach Direct: 202­955­0095 [COR LD NTC Retained] THE BECKET FUND FOR RELIGIOUS LIBERTY Suite 700 1200 New Hampshire Avenue, N.W. Washington, DC 20036

Ashley L. Taylor, Jr. Direct: 804­697­1286 [COR LD NTC Retained] TROUTMAN & SANDERS Firm: 804­697­1200 P.O. Box 1122 Richmond, VA 23218­0000

Anthony Francis Troy Direct: 804­697­1318 [COR LD NTC Retained] TROUTMAN & SANDERS Firm: 804­697­1200 P.O. Box 1122 Richmond, VA 23218­0000

H. Loraine Wallace Direct: 515­281­6670 [COR LD NTC Attorney General] ATTORNEY GENERAL'S OFFICE Firm: 515­281­5164 Hoover Building 1305 E. Walnut Street Des Moines, IA 50319­0001

Innerchange Freedom Initiative Program, Sued as: Innerchange Freedom Initiative
Defendant ­ Appellant

Brent R. Appel Direct: 515­281­1475 [COR LD NTC Retained] (see above)

Derek L. Gaubatz

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

4/23

1/6/2018

06-2741 Docket
[COR LD NTC Retained] (see above)

Jared N. Leland Direct: 202­955­0098 [COR LD NTC Retained] (see above)

Kevin Christopher Newsom Direct: 205­521­8803 [COR LD NTC Retained] (see above)

Anthony R. Picarello, Jr., General Counsel Direct: 202­541­3300 [COR LD NTC Retained] (see above)

Megan Conway Rahman Direct: 804­697­1374 [COR LD NTC Retained] (see above)

Eric C. Rassbach Direct: 202­955­0095 [COR LD NTC Retained] (see above)

George A. Somerville Direct: 804­697­1291 [COR LD NTC Retained] TROUTMAN & SANDERS Firm: 804­697­1200 P.O. Box 1122 Richmond, VA 23218­0000

Ashley L. Taylor, Jr. Direct: 804­697­1286 [COR LD NTC Retained] (see above)

Anthony Francis Troy Direct: 804­697­1318 [COR LD NTC Retained] (see above)

Terry Mapes, in his official capacity as Warden of the Newton Correctional Facility and in his individual capacity
Defendant ­ Appellant

Gordon Eugene Allen Direct: 515­271­2773 [COR LD NTC Attorney General] DRAKE UNIVERSITY LEGAL CLINIC 120 2400 University Avenue Des Moines, IA 50310

H. Loraine Wallace Direct: 515­281­6670 [COR LD NTC Attorney General] (see above)

Walter Kautzky, Sued as Walter "Kip" Kautzky Defendant

John Baldwin, in his official capacity as Acting Director of the Iowa Department of Corrections and in his individual capacity
Defendant ­ Appellant

Gordon Eugene Allen Direct: 515­271­2773 [COR LD NTC Attorney General] (see above)

H. Loraine Wallace Direct: 515­281­6670

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

5/23

1/6/2018

06-2741 Docket
[COR LD NTC Attorney General] (see above)

Haywood Belle, in official capacity as member of Iowa Board of Corrections and in individual capacity
Defendant ­ Appellant

Gordon Eugene Allen Direct: 515­271­2773 [COR LD NTC Attorney General] (see above)

H. Loraine Wallace Direct: 515­281­6670 [COR LD NTC Attorney General] (see above)

Frances Colston, in official capacity and as member of the Iowa Board of Corrections and in individual capacity
Defendant

Robyn Mills, in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant ­ Appellant

Gordon Eugene Allen Direct: 515­271­2773 [COR LD NTC Attorney General] (see above)

H. Loraine Wallace Direct: 515­281­6670 [COR LD NTC Attorney General] (see above)

Arthur Neu, in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant ­ Appellant

Gordon Eugene Allen Direct: 515­271­2773 [COR LD NTC Attorney General] (see above)

H. Loraine Wallace Direct: 515­281­6670 [COR LD NTC Attorney General] (see above)

Suellen Overton, in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant

Walter Reed, Jr., in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant ­ Appellant

Donald Tietz, in official capacity as member of the Iowa Board of Corrections and in indivdual capacity
Defendant

Gary Maynard Defendant ­ Appellant

Gordon Eugene Allen Direct: 515­271­2773 [COR LD NTC Attorney General] (see above)

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

H. Loraine Wallace Direct: 515­281­6670 [COR LD NTC Attorney General] (see above)

Bobby Shelton, also known as Bilal Shukr (State Prisoner: 1089099)
Plaintiff
v.

W. L. Kautzky Defendant

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

6/23

1/6/2018
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

06-2741 Docket

American Center for Law and Justice Amicus on Behalf of Appellant(s)
Travis Dagel Amicus on Behalf of Appellant(s)
Sandro Navarro Amicus on Behalf of Appellant(s)
Robert Wayne Robinson Amicus on Behalf of Appellant(s)
Rick Theeler Amicus on Behalf of Appellant(s)
Foundation for Moral Law Amicus on Behalf of Appellant(s)
https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

Jay Alan Sekulow Direct: 202­546­8890 [COR LD NTC Retained] AMERICAN CENTER FOR LAW & JUSTICE Firm: 202­546­8890 201 Maryland Avenue, N.E. Washington, DC 20002­0000
Walter Martin Weber Direct: 202­546­8890 [COR LD NTC Retained] AMERICAN CENTER FOR LAW & JUSTICE Firm: 202­546­8890 201 Maryland Avenue, N.E. Washington, DC 20002­0000
Jay Alan Sekulow Direct: 202­546­8890 [COR LD NTC Retained] (see above)
Walter Martin Weber Direct: 202­546­8890 [COR LD NTC Retained] (see above)
Jay Alan Sekulow Direct: 202­546­8890 [COR LD NTC Retained] (see above)
Walter Martin Weber Direct: 202­546­8890 [COR LD NTC Retained] (see above)
Jay Alan Sekulow Direct: 202­546­8890 [COR LD NTC Retained] (see above)
Walter Martin Weber Direct: 202­546­8890 [COR LD NTC Retained] (see above)
Jay Alan Sekulow Direct: 202­546­8890 [COR LD NTC Retained] (see above)
Walter Martin Weber Direct: 202­546­8890 [COR LD NTC Retained] (see above)
Benjamin D. DuPre Direct: 334­262­1245 [COR LD NTC Retained] FOUNDATION FOR MORAL LAW Firm: 334­262­1245 1 Dexter Avenue Montgomery, AL 36104­1264
Gregory M. Jones Direct: 334­262­1245 [COR LD NTC Retained]
7/23

1/6/2018

06-2741 Docket
FOUNDATION FOR MORAL LAW Firm: 334­262­1245 1 Dexter Avenue Montgomery, AL 36104­1264

Roy S. Moore Direct: 334­262­1245 [COR LD NTC Retained] FOUNDATION FOR MORAL LAW Firm: 334­262­1245 1 Dexter Avenue Montgomery, AL 36104­1264

Catholic League for Religious and Civil Rights Amicus on Behalf of Appellant(s)

Robert L. Greene Direct: 202­857­9766 [COR LD NTC Retained] STORZER & GREENE 1025 Connecticut Avenue, N.W. Washington, DC 20036­0000

Roman P. Storzer Direct: 202­857­9766 [COR LD NTC Retained] STORZER & GREENE 1025 Connecticut Avenue, N.W. Washington, DC 20036­0000

Alliance Defense Fund Amicus on Behalf of Appellant(s)

Mark Bucci Direct: 248­589­8800 [COR LD NTC Retained] 550 Stephenson Suite 202 Troy, MI 48083­0000

Benjamin Wyman Bull, Chief Counsel Direct: 480­444­0020 [COR LD NTC Retained] ALLIANCE DEFENSE FUND 15100 N. 90th Street Scottsdale, AZ 85260­0000

David C. LaPlante Direct: 913­685­8000 [COR LD NTC Retained] ALLIANCE DEFENSE FUND 15192 Rosewood Leawood, KS 66224­0000

Joel Lee Oster Direct: 913­685­8000 [COR LD NTC Retained] ALLIANCE DEFENSE FUND 15192 Rosewood Leawood, KS 66224­0000

Kevin Theriot Direct: 480­444­0020 [COR LD NTC Retained] ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260

National Association of Evangelicals Amicus on Behalf of Appellant(s)

Mark Bucci Direct: 248­589­8800 [COR LD NTC Retained] (see above)

Benjamin Wyman Bull, Chief Counsel Direct: 480­444­0020 [COR LD NTC Retained]

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

8/23

1/6/2018

06-2741 Docket
(see above)

David C. LaPlante Direct: 913­685­8000 [COR LD NTC Retained] (see above)

Joel Lee Oster Direct: 913­685­8000 [COR LD NTC Retained] (see above)

Kevin Theriot Direct: 480­444­0020 [COR LD NTC Retained] (see above)

Center for Neighborhood Enterprise Amicus on Behalf of Appellant(s)

Mark Bucci Direct: 248­589­8800 [COR LD NTC Retained] (see above)

Benjamin Wyman Bull, Chief Counsel Direct: 480­444­0020 [COR LD NTC Retained] (see above)

David C. LaPlante Direct: 913­685­8000 [COR LD NTC Retained] (see above)

Joel Lee Oster Direct: 913­685­8000 [COR LD NTC Retained] (see above)

Kevin Theriot Direct: 480­444­0020 [COR LD NTC Retained] (see above)

Teen Challenge Amicus on Behalf of Appellant(s)

Mark Bucci Direct: 248­589­8800 [COR LD NTC Retained] (see above)

Benjamin Wyman Bull, Chief Counsel Direct: 480­444­0020 [COR LD NTC Retained] (see above)

David C. LaPlante Direct: 913­685­8000 [COR LD NTC Retained] (see above)

Joel Lee Oster Direct: 913­685­8000 [COR LD NTC Retained] (see above)

Kevin Theriot Direct: 480­444­0020 [COR LD NTC Retained] (see above)

Time to Fly Amicus on Behalf of Appellant(s)

Mark Bucci Direct: 248­589­8800 [COR LD NTC Retained]

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

9/23

1/6/2018
Center for Public Justice Amicus on Behalf of Appellant(s)
Evangelicals for Social Action Amicus on Behalf of Appellant(s)
https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

06-2741 Docket
(see above)
Benjamin Wyman Bull, Chief Counsel Direct: 480­444­0020 [COR LD NTC Retained] (see above)
David C. LaPlante Direct: 913­685­8000 [COR LD NTC Retained] (see above)
Joel Lee Oster Direct: 913­685­8000 [COR LD NTC Retained] (see above)
Kevin Theriot Direct: 480­444­0020 [COR LD NTC Retained] (see above)
Mark Bucci Direct: 248­589­8800 [COR LD NTC Retained] (see above)
Benjamin Wyman Bull, Chief Counsel Direct: 480­444­0020 [COR LD NTC Retained] (see above)
David C. LaPlante Direct: 913­685­8000 [COR LD NTC Retained] (see above)
Joel Lee Oster Direct: 913­685­8000 [COR LD NTC Retained] (see above)
Kevin Theriot Direct: 480­444­0020 [COR LD NTC Retained] (see above)
Mark Bucci Direct: 248­589­8800 [COR LD NTC Retained] (see above)
Benjamin Wyman Bull, Chief Counsel Direct: 480­444­0020 [COR LD NTC Retained] (see above)
David C. LaPlante Direct: 913­685­8000 [COR LD NTC Retained] (see above)
Joel Lee Oster Direct: 913­685­8000 [COR LD NTC Retained] (see above)
Kevin Theriot Direct: 480­444­0020

10/23

1/6/2018
Coalition to Preserve Religious Freedom Amicus on Behalf of Appellant(s)
State of Virginia Amicus on Behalf of Appellant(s)
State of Alabama Amicus on Behalf of Appellant(s)
State of Arkansas Amicus on Behalf of Appellant(s)
State of Colorado Amicus on Behalf of Appellant(s)
State of Florida Amicus on Behalf of Appellant(s)
State of Kansas Amicus on Behalf of Appellant(s)
State of Missouri Amicus on Behalf of Appellant(s)
State of South Carolina Amicus on Behalf of Appellant(s)
https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

06-2741 Docket
[COR LD NTC Retained] (see above)
Mark Bucci Direct: 248­589­8800 [COR LD NTC Retained] (see above)
Benjamin Wyman Bull, Chief Counsel Direct: 480­444­0020 [COR LD NTC Retained] (see above)
David C. LaPlante Direct: 913­685­8000 [COR LD NTC Retained] (see above)
Joel Lee Oster Direct: 913­685­8000 [COR LD NTC Retained] (see above)
Kevin Theriot Direct: 480­444­0020 [COR LD NTC Retained] (see above)
William Eugene Thro, General Counsel Direct: 757­594­7571 [COR LD NTC Attorney General] CHRISTOPHER NEWPORT UNIVERSITY 1 Avenue of the Arts Newport News, VA 23606
William Eugene Thro, General Counsel Direct: 757­594­7571 [COR LD NTC Attorney General] (see above)
William Eugene Thro, General Counsel Direct: 757­594­7571 [COR LD NTC Attorney General] (see above)
William Eugene Thro, General Counsel Direct: 757­594­7571 [COR LD NTC Attorney General] (see above)
William Eugene Thro, General Counsel Direct: 757­594­7571 [COR LD NTC Attorney General] (see above)
William Eugene Thro, General Counsel Direct: 757­594­7571 [COR LD NTC Attorney General] (see above)
William Eugene Thro, General Counsel Direct: 757­594­7571 [COR LD NTC Attorney General] (see above)
William Eugene Thro, General Counsel Direct: 757­594­7571 [COR LD NTC Attorney General] (see above)

11/23

1/6/2018
State of Texas Amicus on Behalf of Appellant(s)
Wallbuilders, INC. Amicus on Behalf of Appellant(s)
Iowa Family Policy Center Amicus on Behalf of Appellant(s)
United States of America Amicus on Behalf of Appellant(s)
American Jewish Committee Amicus on Behalf of Appellee(s)
Anti­Defamation League Amicus on Behalf of Appellee(s)
American Civil Liberties Union Amicus on Behalf of Appellee(s)
Amer.Civ.Lib. of IA Amicus on Behalf of Appellee(s)
Council for Secular Humanism Amicus on Behalf of Appellee(s)
https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

06-2741 Docket
William Eugene Thro, General Counsel Direct: 757­594­7571 [COR LD NTC Attorney General] (see above)
Steven W. Fitschen [COR LD NTC Retained] NATIONAL LEGAL FOUNDATION 2224 Virginia Beach Boulevard Virginia Beach, VA 23454­0000
Chuck Hurley Direct: 515­263­7645 [COR LD NTC Retained] IOWA FAMILY POLICY CENTER Number 5 1100 N. Hickory Boulevard Pleasant Hill, IA 50327­0000
Nathan Wesley Tucker Direct: 563­468­1718 [COR LD NTC Retained] TUCKER LA W FIRM Firm: 563­468­1718 P.O. Box 4714 Davenport, IA 52808
Matthew M. Collette [COR LD NTC Government] U.S. DEPARTMENT OF JUSTICE Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Washington, DC 20530­0001
Jeffrey P. Sinensky Direct: 212­751­4000 [COR LD NTC Retained] AMERICAN JEWISH COMMITTEE 165 E. 56th Street New York, NY 10022­0000
Hart P. Passman Direct: 312­578­6634 [COR LD NTC Retained] HOLLAND & KNIGHT Firm: 312­263­3600 30th Floor 131 S. Dearborn Street Chicago, IL 60603­0000
Daniel Mach [COR LD NTC Retained] AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC. Second Floor 915 15th Street, N.W. Washington, DC 20005
Daniel Mach [COR LD NTC Retained] (see above)
Ronald Alan Lindsay Direct: 202­546­2332 [COR LD NTC Retained] CENTER FOR INQUIRY Legal Department Firm: 202­546­2332 621 Pennsylvania Avenue, S.E. Washington, DC 20003­0000

12/23

1/6/2018
Center for Inquiry Amicus on Behalf of Appellee(s)

06-2741 Docket
Ronald Alan Lindsay Direct: 202­546­2332 [COR LD NTC Retained] (see above)

American Jewish Congress Amicus on Behalf of Appellee(s)

Joshua D. Weinberg Direct: 202­637­5600 [COR LD NTC Retained] HOGAN & LOVELLS Firm: 202­637­5600 Columbia Square 555 13th Street, N.W. Washington, DC 20004­0000

Baptist Joint Committee for Religious Liberty Amicus on Behalf of Appellee(s)

K. Hollyn Hollman Direct: 202­544­4226 [COR LD NTC Retained] BAPTIST JOINT COMMITTEE FOR RELIGIOUS LIBERTY 200 Maryland Avenue, N.E. Washington, DC 20002­0000

Joshua D. Weinberg Direct: 202­637­5600 [COR LD NTC Retained] (see above)

American Correctional Chaplains Association Amicus on Behalf of Appellee(s)

Steven Keith Green [COR LD NTC Retained] AMERICANS UNITED FOR SEPARATION OF CHURCH & STATE Firm: 202­466­3234 518 C Street, N.E. Washington, DC 20002­0000

American Catholic Correctional Chaplains Association Amicus on Behalf of Appellee(s)

Steven Keith Green [COR LD NTC Retained] (see above)

Jewish Prisoner Services International Amicus on Behalf of Appellee(s)

Steven Keith Green [COR LD NTC Retained] (see above)

Jerry Dean Ashburn Plaintiff

Warden Terry Mapes, Sued as: Terry D. Mapes Defendant

Innerchange Freedom Initiative Program Defendant

John Baldwin, in his official capacity as Acting Director of the Iowa Department of the Iowa Department of Corrections and in his individual capacity
Defendant

Haywood Belle, in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant

Frances Colston, in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant

Robyn Mills, in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant

Arthur Neu, in official capacity as member of the Iowa Board of Corrections and in individual capacity
https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

13/23

1/6/2018

Defendant

06-2741 Docket

Suellen Overton, in official capacity as member of the Iowa Bord of Corrections and in individual capacity
Defendant

Walter Reed, Jr., in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant

Donald Tietz, in official capacity as member of the Iowa Board of Corrections and in individual capacity
Defendant

Prison Fellowship Ministries Defendant

Benjamin Wyman Bull, Chief Counsel Direct: 480­444­0020 [COR LD NTC Retained] (see above)

Gary Maynard Defendant

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

14/23

1/6/2018

06-2741 Docket

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; CAROL DELP; ARDENE MCKEAG; DOROTHY REDD; SANDRA SOBOTKA

Plaintiffs ­ Appellees

v.
PRISON FELLOWSHIP MINISTRIES; INNERCHANGE FREEDOM INITIATIVE PROGRAM, Sued as: Innerchange Freedom Initiative; TERRY MAPES, in his official capacity as Warden of the Newton Correctional Facility and in his individual capacity;
Defendants ­ Appellants
WALTER KAUTZKY, Sued as Walter "Kip" Kautzky;
Defendant
JOHN BALDWIN, in his official capacity as Acting Director of the Iowa Department of Corrections and in his individual capacity; HAYWOOD BELLE, in official capacity as member of Iowa Board of Corrections and in individual capacity;
Defendants ­ Appellants
FRANCES COLSTON, in official capacity and as member of the Iowa Board of Corrections and in individual capacity;
Defendant
ROBYN MILLS, in official capacity as member of the Iowa Board of Corrections and in individual capacity; ARTHUR NEU, in official capacity as member of the Iowa Board of Corrections and in individual capacity;
Defendants ­ Appellants
SUELLEN OVERTON, in official capacity as member of the Iowa Board of Corrections and in individual capacity;
Defendant
WALTER REED, JR., in official capacity as member of the Iowa Board of Corrections and in individual capacity;
Defendant ­ Appellant
DONALD TIETZ, in official capacity as member of the Iowa Board of Corrections and in indivdual capacity;
Defendant
GARY MAYNARD
Defendant ­ Appellant

­­­­­­­­­­­­­­­­­­­­­­­­­ BOBBY SHELTON, also known as Bilal Shukr
Plaintiff

v. W. L. KAUTZKY
Defendant
https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

15/23

1/6/2018

06-2741 Docket

­­­­­­­­­­­­­­­­­­­­­­­­­
AMERICAN CENTER FOR LAW AND JUSTICE; TRAVIS DAGEL; SANDRO NAVARRO; ROBERT WAYNE ROBINSON; RICK THEELER;
Amici on behalf of Appellant
FOUNDATION FOR MORAL LAW; CATHOLIC LEAGUE FOR RELIGIOUS AND CIVIL RIGHTS;
Amicus on Behalf of Appellant
ALLIANCE DEFENSE FUND; NATIONAL ASSOCIATION OF EVANGELICALS; CENTER FOR NEIGHBORHOOD ENTERPRISE; TEEN CHALLENGE; TIME TO FLY; CENTER FOR PUBLIC JUSTICE; EVANGELICALS FOR SOCIAL ACTION; COALITION TO PRESERVE RELIGIOUS FREEDOM; STATE OF VIRGINIA; STATE OF ALABAMA;
Amici on behalf of Appellant
STATE OF ARKANSAS, STATE OF COLORADO; STATE OF FLORIDA; STATE OF KANSAS; STATE OF MISSOURI; STATE OF SOUTH CAROLINA; STATE OF TEXAS;
Amici on behalf of Appellant
WALLBUILDERS, INC.; IOWA FAMILY POLICY CENTER; UNITED STATES OF AMERICA;
Amici on Behalf of Appellant
JERRY DEAN ASHBURN;
Plaintiff
WARDEN TERRY MAPES, Sued as: Terry D. Mapes; INNERCHANGE FREEDOM INITIATIVE PROGRAM; JOHN BALDWIN, in his official capacity as Acting Director of the Iowa Department of the Iowa Department of Corrections and in his individual capacity; HAYWOOD BELLE, in official capacity as member of the Iowa Board of Corrections and in individual capacity; FRANCES COLSTON, in official capacity as member of the Iowa Board of Corrections and in individual capacity; ROBYN MILLS, in official capacity as member of the Iowa Board of Corrections and in individual capacity; ARTHUR NEU, in official capacity as member of the Iowa Board of Corrections and in individual capacity; SUELLEN OVERTON, in official capacity as member of the Iowa Bord of Corrections and in individual capacity; WALTER REED, JR., in official capacity as member of the Iowa Board of Corrections and in individual capacity; DONALD TIETZ, in official capacity as member of the Iowa Board of Corrections and in individual capacity; PRISON FELLOWSHIP MINISTRIES; GARY MAYNARD
Defendants

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

16/23

1/6/2018

06-2741 Docket

06/30/2006 06/30/2006 06/30/2006 07/05/2006
07/05/2006
07/05/2006 07/05/2006 07/05/2006 07/05/2006 07/07/2006 07/07/2006 07/10/2006 07/10/2006 07/10/2006 07/10/2006 07/11/2006 07/17/2006 07/19/2006 07/19/2006 07/19/2006 07/19/2006 07/19/2006 07/19/2006 07/26/2006 09/13/2006 09/13/2006

Civil Case Docketed. Dist. Ct. Office: Des Moines (LLB) [Entered: 06/30/2006 10:52 AM]
CERTIFIED copies notice of appeal, docket entries, and judgment dated 6/5/06 from district court [06­ 2741] [2063081] (LLB) [Entered: 06/30/2006 10:54 AM]
BRIEFING SCHEDULE: [06­2741] Transcript due on 8/9/06 Apndx due on 8/21/06 Aplnt brief due on 8/21/06 Aplee brief due on 9/18/06 reply brief due on 10/2/06 (LLB) [Entered: 06/30/2006 10:55 AM]
RECORDS received: Transcript, consisting of 14 Volumes of trial held on 10/24/2005 ­ 2/17/2006 ­ vols. I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, and XIV. Location STL. [06­2741] (STL) [Entered: 07/06/2006 01:12 PM]
RECORDS received: Transcript, consisting of 5 Volumes. ( 1 vol. of proceedings held on 8/6/2003, 1 vol. of hearing held on 3/25/2004, 1 vol. of hearing held on 7/19/2005, and 2 vols. of summary judgment hearing held on 10/12/2004 ­ 10/13/2004 ­ vols. I and II) Location STL. [06­2741] (STL) [Entered: 07/06/2006 02:17 PM]
APPEARANCE for appellee, attorney Alex J. Luchenitser [06­2741] [2067347] (JPP) [Entered: 07/13/2006 02:12 PM]
APPEARANCE for appellee, attorney Richard B. Katskee [06­2741] [2067352] (JPP) [Entered: 07/13/2006 02:14 PM]
APPEARANCE for appellee, attorney Heather L. Weaver [06­2741] [2067354] (JPP) [Entered: 07/13/2006 02:16 PM]
Corporate Disclosure Statement filed. Filed by Americans United FOR CAL. (DKM) [Entered: 09/06/2006 10:28 AM]
APPEARANCE for appellee, attorney Dean Stowers [06­2741] [2065132] (JPP) [Entered: 07/07/2006 03:40 PM]
Corporate Disclosure Statement filed. Filed by Prison Fellowship, Innerchange Freedom FOR CAL. (DKM) [Entered: 08/21/2006 03:18 PM]
APPEARANCE for appellant, attorney H. Loraine Wallace [06­2741] [2066964] (JPP) [Entered: 07/12/2006 05:02 PM]
DESIGNATION of record received from Appellants Terry Mapes, et al. Type of appendix: separate [06­ 2741] (JPP) [Entered: 07/12/2006 05:07 PM]
Remarks: Transcript ordered. [06­2741] (JPP) [Entered: 07/12/2006 05:08 PM]
APPEARANCE for appellant, attorney Gordon Eugene Allen [06­2741] [2066967] (JPP) [Entered: 07/12/2006 05:09 PM]
APPEARANCE for appellant, attorney Anthony F. Troy [06­2741] [2066968] (JPP) [Entered: 07/12/2006 05:12 PM]
APPEARANCE for appellee, attorney Ayesha Khan [06­2741] [2068402] (F) [Entered: 07/18/2006 10:18 AM]
APPEARANCE for appellant, attorney Jared N. Leland [06­2741] [2069215] (MAJ) [Entered: 07/19/2006 01:46 PM]
APPEARANCE for appellant, attorney Eric C. Rassbach [06­2741] [2069221] (F) [Entered: 07/19/2006 01:52 PM]
APPEARANCE for appellant, attorney Derek L. Gaubatz [06­2741] [2069226] (F) [Entered: 07/19/2006 01:55 PM]
APPEARANCE for appellant, attorney Anthony R. Picarello [06­2741] [2069230] (F) [Entered: 07/19/2006 01:56 PM]
MOTION of aplnts, Prison Fellowship, et al. for extension of time to file brief until 9/20/06 . [06­2741] [2069389] w/service 7/18/06 (JPP) [Entered: 07/19/2006 04:14 PM]
ORDER filed:granting in part appellant motion for extension of time to file brief [2069392] Aplnt brief now due on 9/13/06 (JPP) [Entered: 07/19/2006 04:19 PM]
RECORDS received: Transcript, consisting of 1 Volume of hearing held on 6/22/2006. Location STL. [06­ 2741] (STL) [Entered: 07/26/2006 02:03 PM]
RECORDS received: Appendix filed by Appellants Prison Fellowship, Appellants Innerchange Freedom consisting of 3 Volume(s), 3 Copies. Defects: dkt ent [06­2741] (PJS) [Entered: 09/17/2006 04:18 PM]
RECORDS received: Exhibits, Located in: St.Louis, MO, consisting of 6 boxes. [06­2741] (JPP) [Entered:

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

17/23

1/6/2018

09/21/2006 10:10 AM]

06-2741 Docket

09/14/2006

BRIEF FILED ­ Brief of Appellant­ Prison Fellowship, Innerchange Freedom 13910 words 11 copies ­

76 pg, 181.33 KB w/service 9/13/06 w/cdrom . [06­2741] [2090105] (PJS) [Entered: 09/17/2006 04:55 PM]

09/14/2006

ADDENDUM FILED ­ Appellant Prison Fellowship and Innerchange Freedom Initiative addendum. 11 copies w/service 9/13/06 [06­2741] [2090108] (PJS) [Entered: 09/17/2006 05:14 PM]

09/14/2006
61 pg, 91.49 KB

BRIEF FILED ­ Brief of Appellant­ Terry Mapes, John Baldwin, Haywood Belle, Robyn Mills, Arthur Neu, Walter Reed, Gary Maynard , 11,887 words. w/addendum 10 copies ­ w/service 9/13/06 w/diskette . [06­ 2741] [2091008] (JPP) [Entered: 09/19/2006 11:38 AM]

09/14/2006

RECORDS received: Appendix filed by Appellants Terry Mapes, et al. consisting of 1 Volume(s), 3 Copies. [06­2741] (JPP) [Entered: 09/19/2006 02:34 PM]

09/15/2006

MOTION of amicus curiae United States, for extension of time to file brief until 10/6/06 . [06­2741] [2091141] "w/service 9/14/06 (JPP) [Entered: 09/19/2006 02:40 PM]

09/18/2006

RESPONSE of aplees, Americans United, Carol Delp, Ardene McKeag, Dorothy Redd, Sandra Sobotka, in support of amicus motion of United States for ext. of time to file brief filed [2091141­1] [2091145] . (JPP) [Entered: 09/19/2006 02:42 PM]

09/20/2006

ORDER filed: The motion of the United States for an extension of time until October 6, 2006 to file an amicus curiae brief on behalf of appellants is hereby granted. [2091141­1] [2091413] Amicus brief now due on 10/6/06 (JPP) [Entered: 09/20/2006 11:52 AM]

09/20/2006

BRIEF TENDERED ­ Brief of Amicus­Curiae Iowa Family Policy Center (IFPC) ­ on behalf of appellant . 24 pages ­ 10 copies w/service 9/20/06 . (JPP) [Entered: 09/26/2006 02:34 PM]

09/20/2006

MOTION of amicus curiae Iowa Family Policy Center, for leave to file amicus curiae brief on behalf of appellant [2093583] "w/service 9/20/06 (JPP) [Entered: 09/26/2006 02:35 PM]

09/20/2006

APPEARANCE for amicus curiae, attorney Steven W. Fitschen [06­2741] [2097102] (JPP) [Entered: 10/06/2006 01:33 PM]

09/22/2006

BRIEF TENDERED ­ Brief of Amici­Curiae ­ Alliance Defense Fund, National Association of Evangelicals, Center for Neighborhood Enterprise, Teen Challenge, Time to Fly, Center for Public Justice, Evangelicals for Social Action, Coalition to preserve Religious Freedom on behalf of appellants . 18 pages ­ 10 copies w/service 9/21/06 . (JPP) [Entered: 09/26/2006 03:55 PM]

09/22/2006

MOTION of amici curiae, Alliance Defense Fund, National Association of Evangelicals, Center for Neighborhood Enterprise, Teen Challenge, Time to Fly, Center for Public Justice, Evangelicals for Social Action, and Coalition to Preserve Religious Freedom for leave to file amicus curiae brief on behalf of appellants [2093658] "w/service 9/21/06 (JPP) [Entered: 09/26/2006 03:59 PM]

09/22/2006
26 pg, 64.49 KB

BRIEF FILED ­ Brief of Amici­Curiae ­ Alliance Defense, Nat. Assoc. Evang., Center for Neig., Teen Challenge, Time to Fly, Center for Public, Evangelicals for, Coalition to Pres on behalf of appellants . 4,990 words ­ 10 copies w/service 9/21/06 . [06­2741] [2093961] (JPP) [Entered: 09/27/2006 12:12 PM]

09/22/2006

BRIEF FILED ­ Brief of Amici­Curiae ­ State of AL, State of AR, State of CO, State of FL, State of KS, State of MO on behalf of appellants . 6,043 words ­ 10 copies w/service 9/21/06 . [06­2741] [2093988] (JPP) [Entered: 09/27/2006 01:20 PM]

09/25/2006
18 pg, 93.63 KB

BRIEF FILED ­ Brief of Amici­Curiae ­ American Center, Travis Dagel, Sandro Navarro, Robert Wayne Robinson, Rick Theeler on behalf of appellants . 12 pages ­ 10 copies w/service 9/22/06 . [06­2741] [2093869] (JPP) [Entered: 09/27/2006 10:47 AM]

09/25/2006

BRIEF FILED ­ Brief of Amicus­Curiae ­ Foundation for Moral on behalf of appellants . 6,695 words ­ 10

45 pg, 72.72 KB copies w/service 9/22/06 . [06­2741] [2093912] (JPP) [Entered: 09/27/2006 11:27 AM]

09/25/2006

BRIEF FILED ­ Brief of Amicus­Curiae ­ Catholic League on behalf of appellants . 11 pages ­ 10 copies

20 pg, 154.96 KB w/service 9/22/06 . [06­2741] [2093946] (JPP) [Entered: 09/27/2006 11:56 AM]

09/25/2006

BRIEF FILED ­ Brief of Amicus­Curiae ­ Wallbuilders on behalf of appellants . 6,964 words ­ 10 copies

42 pg, 262.95 KB w/service 9/22/06 . [06­2741] [2094037] (JPP) [Entered: 09/27/2006 02:15 PM]

09/25/2006

Brief Correction(s) received from Appellants Prison Fellowship. Correction(s): addendum covers . [06­ 2741] (JPP) [Entered: 10/19/2006 01:28 PM]

09/26/2006

MOTION of aplee, Americans United , for extension of time to file brief until 10/16/06 . [06­2741] [2093785] w/service 9/26/06 (JPP) [Entered: 09/27/2006 09:39 AM]

09/27/2006

ORDER filed:granting appellee motion extension of time to file brief [2093785­1] [2093819] Aplee brief now due on 10/16/06 . (JPP) [Entered: 09/27/2006 10:02 AM]

09/27/2006

ORDER filed: Correcting previous order dated 9/27/06. [2094155­1] The correction made: Appellees' motion for an extension of time to file the brief is granted. Appellees may have until November 8, 2006 to

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

18/23

1/6/2018
10/02/2006
10/02/2006 10/03/2006 10/03/2006 10/04/2006
10/05/2006

06-2741 Docket
file the brief. [06­2741] [2094155] (JPP) [Entered: 09/27/2006 03:57 PM]
MOTION of aplees, Americans United, Carol Delp, Ardene McKeag, Dorothy Redd, Sandra Sobotka , to file overlength brief of 18,342, 16,304, 15,563 or such other amount in excess of 14,000 words. [06­2741] [2095934] w/service 10/2/06 (JPP) [Entered: 10/03/2006 03:39 PM]
APPEARANCE for amicus curiae, attorney Gregory M. Jones [06­2741] [2096186] (JPP) [Entered: 10/04/2006 12:59 PM]
APPEARANCE for amicus curiae Commonwealth of Virginia and State of AL as well as seven other States, attorney William E. Thro [06­2741] [2097111] (JPP) [Entered: 10/06/2006 01:45 PM]
Corrected disk rec'd for brief of amici curiae State of VA, State of AL, State of AR, State of CO, State of FL, State of KS, State of MO, State of SC, State of TX [06­2741] (JPP) [Entered: 10/06/2006 01:48 PM]
ORDER filed: [2095934­1] [06­2741] [2096148] Appellees' motion to file brief in excess of limits set forth in FRAP Rule 32 (a)(7)(A) and (B) is granted. Appellees' brief shall not exceed 18,342 words. (JPP) [Entered: 10/04/2006 11:35 AM]
Corrected disk rec'd for brief of amicus Wallbuilders [06­2741] (JPP) [Entered: 10/06/2006 01:40 PM]

10/06/2006 10/10/2006 10/10/2006 10/10/2006 10/10/2006 10/10/2006 10/10/2006 10/17/2006 10/17/2006

APPEARANCE for amicus curiae Catholic League, etc., attorney Roman P. Storzer [06­2741] [2097382] (JPP) [Entered: 10/10/2006 09:46 AM]
APPEARANCE for amicus curiae Alliance Defense Fund, attorney Mark Bucci [06­2741] [2099818] (JPP) [Entered: 10/16/2006 04:11 PM]
APPEARANCE for amici curiae Alliance Defense Fund, et al., attorney Joel L. Oster [06­2741] [2099821] (JPP) [Entered: 10/16/2006 04:16 PM]
APPEARANCE for amici curiae, Alliance Defense Fund, et al. attorney David C. LaPlante [06­2741] [2099823] (JPP) [Entered: 10/16/2006 04:22 PM]
APPEARANCE for amici curiae Alliance Defense Fund, et al., attorney Kevin Theriot [06­2741] [2099825] (JPP) [Entered: 10/16/2006 04:29 PM]
APPEARANCE for amicus curiae Prison Fellowship, attorney Benjamin W. Bull [06­2741] [2099830] (JPP) [Entered: 10/16/2006 04:36 PM]
APPEARANCE for amicus curiae, attorney Walter M. Weber [06­2741] [2099832] (JPP) [Entered: 10/16/2006 04:42 PM]
BRIEF FILED ­ Brief of Amicus­Curiae ­ Iowa Family Policy on behalf of appellants . 25 pages ­ 10 copies w/service 9/15/06 . [06­2741] [2100003] (JPP) [Entered: 10/17/2006 09:48 AM]
New Diskette requested. [06­2741] (JPP) [Entered: 10/17/2006 10:08 AM]

10/18/2006

ORDER filed: The United States has filed an amicus brief on behalf of appellants. See Fed. R.App.P. 29(a). Appellees' brief is due November 13, 2006. [2100731] (JPP) [Entered: 10/18/2006 02:16 PM]

10/18/2006

BRIEF FILED ­ Brief of Amicus­Curiae ­ USA on behalf of appellants . 13 pages ­ 10 copies w/service

20 pg, 97.95 KB 10/6/06 . [06­2741] [2100877] (JPP) [Entered: 10/18/2006 05:08 PM]

10/30/2006

Corrected disk rec'd for brief of Iowa Family Policy (unreadable disk). [06­2741] (JPP) [Entered: 11/02/2006 04:59 PM]

11/14/2006

MOTION of aplnts, Prison Fellowship, Innerchange Freedom, Terry Mapes, et al. for extension of time to file reply brief until 12/4/06 . [06­2741] [2110157] w/service 11/13/06 (JPP) [Entered: 11/16/2006 10:20 AM]

11/16/2006

ORDER filed:granting appellant motion extension of time to file reply brief. [2110157­1] [2110158] Reply brief now due on 12/4/06 . (JPP) [Entered: 11/16/2006 10:22 AM]

11/16/2006

MOTION of aplee, Americans United , to seal a portion of the appendix (vol. V). [06­2741] [2110435] w/service 11/13/06 (JPP) [Entered: 11/16/2006 04:00 PM]

11/16/2006

MOTION of aplees, Americans United, et al. , for leave to submit electronic courtesy copies of trial transcript, appellees' appendix and selected trial exhibits and for leave to file under seal certain cds containing exhibits sealed below. [06­2741] [2110438] w/service 11/13/06 (JPP) [Entered: 11/16/2006 04:01 PM]

11/16/2006

BRIEF FILED ­ Brief of Appellee ­ Americans United, Carol Delp, Ardene McKeag, Dorothy Redd, Sandra

106 pg, 218.34 KB Sobotka. 18,305 words w/addendum ­ 10 copies ­ w/service 11/13/06 . w/cdrom [06­2741] [2111133] (JPP) [Entered: 11/20/2006 11:58 AM]

11/20/2006

ORDER filed: Appellees' motion to file Volume V of their appendix under seal is granted. Appellees' motion for leave to submit electronic courtesy copies of certain record materials is also granted. [2110435­

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

19/23

1/6/2018
11/20/2006

06-2741 Docket
1] [2111069] [2110438­1] [06­2741] [2111069] (JPP) [Entered: 11/20/2006 11:21 AM] New Diskette requested. [06­2741] (JPP) [Entered: 11/20/2006 12:10 PM]

11/20/2006

RECORDS received: Appendix filed by Appellees Americans United, Appellees Carol Delp, Appellees Ardene McKeag, Appellees Dorothy Redd, Appellees Sandra Sobotka consisting of 5 Volume(s), 3 Copies, Vol 5 under seal. [06­2741], (IN CAMERA) (JPP) [Entered: 11/20/2006 12:26 PM]

11/20/2006

RECORDS received: Miscellaneous Records, consisting of appellees' courtesy electronic copies of trial transcript, appendix (vol. 5 of which is sealed) and selected exhibitsi (certain of which are sealed) [06­ 2741], FOR CAL. (JPP) [Entered: 11/20/2006 01:39 PM]

11/24/2006

BRIEF FILED ­ Brief of Amicus­Curiae ­ Amer. Jewish Comm., Anti­Defamation on behalf of appellees . 6,267 words ­ 10 copies w/service 11/22/06 . [06­2741] [2119244] (JPP) [Entered: 12/13/2006 04:10 PM]

11/24/2006

BRIEF FILED ­ Brief of Amicus­Curiae ­ American Civil, Amer.Civ.Lib. of IA on behalf of appellees . 5,922 words ­ 10 copies w/service 11/21/06 . [06­2741] [2119279] (JPP) [Entered: 12/13/2006 04:40 PM]

11/24/2006

BRIEF FILED ­ Brief of Amicus­Curiae ­ American Jewish, Bapt.Jt.Com. Rel. on behalf of appellees . 6,891 words ­ 10 copies w/service 11/23/06 . [06­2741] [2119548] (JPP) [Entered: 12/14/2006 09:47 AM]

11/27/2006

BRIEF FILED ­ Brief of Amicus­Curiae ­ Council for Secular, Center for Inquiry on behalf of appellees . 6,913 words ­ 10 copies w/service 11/20/06 . [06­2741] [2119298] (JPP) [Entered: 12/13/2006 05:01 PM]

11/27/2006

BRIEF FILED ­ Brief of Amicus­Curiae ­ Amer.Corr.Chap., Amer.Catholic Corr., Jewish Prisoner on behalf of appellees . 5,667 words ­ 10 copies w/service 11/21/06 . [06­2741] [2119595] (JPP) [Entered: 12/14/2006 10:08 AM]

11/29/2006

Corrected disk rec'd for brief of appellees Americans United, et al. [06­2741] (JPP) [Entered: 12/14/2006 10:50 AM]

12/05/2006

BRIEF FILED ­ Reply brief ­ Prison Fellowship, Innerchange Freedom . 6,997 words 10 copies ­ w/service

40 pg, 144.64 KB 12/4/06 . w/cdrom [06­2741] [2115608] (JPP) [Entered: 12/05/2006 04:26 PM]

12/05/2006
22 pg, 57.58 KB

BRIEF FILED ­ Reply brief ­ Terry Mapes, John Baldwin, Haywood Belle, Robyn Mills, Arthur Neu, Walter Reed, Gary Maynard . 16 pages 10 copies ­ w/service 12/4/06 ­ with diskette. Defects: point typesize too small, needs word count. [06­2741] [2115622] (JPP) [Entered: 12/05/2006 04:49 PM]

12/12/2006

TO SCREENING to rw. [06­2741] (BWB) [Entered: 12/12/2006 07:10 AM]

12/13/2006 12/18/2006 12/21/2006 12/21/2006 12/22/2006 01/12/2007
02/12/2007 02/13/2007
1 pg, 12.8 KB
02/23/2007

RECORDS received: Exhibits, Located in: STL, consisting of one large box of Trial Exhibits. [ Return to the District Court at end of case] [06­2741] (STL) [Entered: 12/13/2006 03:11 PM]
BRIEF FILED ­ CORRECTED BRIEF correcting Doc. No., [2115622­2], brief Reply of state appellants. [3260832­1] [06­2741] (JPP) [Entered: 12/19/2006 04:56 PM]
APPEARANCE FILED by Attorney Mr. Daniel Mach for Amici on Behalf of Appellee Amer.Civ.Lib. of IA and American Civil Liberties Union [3264588] [06­2741] (JPP) [Entered: 01/03/2007 04:46 PM]
APPEARANCE FILED by Attorney Mr. Joshua D. Weinberg for Amici on Behalf of Appellee American Jewish Congress [3264593] [06­2741] (JPP) [Entered: 01/03/2007 04:58 PM]
APPEARANCE FILED by Attorney K. Hollyn Hollman for Amicus on Behalf of Appellee Baptist Joint Committee for Religious Liberty [3264585] [06­2741] (JPP) [Entered: 01/03/2007 04:40 PM]
SET FOR ARGUMENT ­ CASE PLACED ON CALENDAR ­ for Argument in St. Louis on 02/13/2007. To be heard before Judges Sandra Day O'Connor, Roger L. Wollman, Duane Benton, St Louis Division II. All attorneys presenting oral argument must complete a response form, which may be found at http://www.ca8.uscourts.gov/webcal/response/feb07stl.pdf For the complete calendar go to http://www.ca8.uscourts.gov/webcal/feb07stl.pdf [06­2741] (KAS) [Entered: 01/12/2007 03:26 PM]
28(j) citation filed by Americans United For Separation of Church and State, Ms. Carol Delp, Ardene McKeag, Ms. Dorothy Redd and Ms. Sandra Sobotka. [3277708] [06­2741] (CMD) [Entered: 02/12/2007 09:17 AM]
ARGUED & SUBMITTED in St. Louis to Judges Sandra Day O'Connor ; Roger L. Wollman ; Duane Benton Mr. Gordon Eugene Allen for Appellants Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Mr. Haywood Belle, John Baldwin and Terry Mapes, Mr. Anthony R. Picarello, Jr. for Appellants Innerchange Freedom Initiative Program and Prison Fellowship Ministries and Mr. Alex J. Luchenitser for Appellees Ms. Carol Delp, Ms. Sandra Sobotka, Ms. Dorothy Redd, Ardene McKeag and Americans United For Separation of Church and State. Rebuttal by Mr. Gordon Eugene Allen for Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Mr. Haywood Belle, John Baldwin and Terry Mapes RECORDED [3278529] [06­ 2741] (CMD) [Entered: 02/13/2007 02:47 PM]
RECORD FILED ­ Record Part: EXHIBITS, Volumes Location: STL, Comments: 2 large boxes containing 15 three ring binders containing Plaintiff Exhibits 1 ­ 426 and 463 ­ 474. [ Return to the District Court at

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

20/23

1/6/2018

06-2741 Docket
end of case], Source Location: USDC / SIDM [3281773] [06­2741] (STL) [Entered: 02/25/2007 11:55 AM]

06/29/2007

LETTER from Appellants John Baldwin, Mr. Haywood Belle, Terry Mapes, Mr. Gary Maynard, Ms. Robyn Mills, Mr. Arthur Neu and Mr. Walter Reed, Jr.. w/service DISREGARD ENTRY. COUNSEL FILED UNDER INCORRECT EVENT. CONTACTED COUNSEL TO REFILE UNDER RULE 28J.[3324716] [06­2741] (HLW) [Entered: 06/29/2007 03:54 PM]

06/29/2007

28(j) citation filed by Appellants Innerchange Freedom Initiative Program and Prison Fellowship Ministries.

94 pg, 1020.28 KB , w/service 06/29/2007 [3324777] [06­2741] (ARP) [Entered: 06/29/2007 05:46 PM]

06/29/2007

28(j) citation filed by Appellants Innerchange Freedom Initiative Program and Prison Fellowship Ministries.

31 pg, 288.54 KB , w/service 06/29/2007 [3324778] [06­2741] (ARP) [Entered: 06/29/2007 06:03 PM]

06/29/2007
3 pg, 96.14 KB

CORRECTED certificate of service for 28(j) citation , Doc No. [3324777­2], 28(j) citation , Doc No. [3324778­2], filed by Appellants Innerchange Freedom Initiative Program and Prison Fellowship Ministries [3324782] [06­2741] (ARP) [Entered: 06/29/2007 07:27 PM]

07/02/2007
2 pg, 88.43 KB

28(j) citation filed by Appellants John Baldwin, Mr. Haywood Belle, Terry Mapes, Mr. Gary Maynard, Ms. Robyn Mills, Mr. Arthur Neu and Mr. Walter Reed, Jr.. , w/service 07/02/2007 [3325013] [06­2741] (HLW) [Entered: 07/02/2007 10:51 AM]

07/05/2007
3 pg, 27.07 KB

Response of Appellees Americans United For Separation of Church and State, Ms. Carol Delp, Ardene McKeag, Ms. Dorothy Redd and Ms. Sandra Sobotka to 28(j) citation , [3325013­2], filed by Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Mr. Walter Reed, Jr., Mr. Haywood Belle, John Baldwin, Terry Mapes and Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Mr. Walter Reed, Jr., Mr. Haywood Belle and John Baldwin in 06­2741. w/service 07/05/2007 [3326802] [06­2741] (AJL) [Entered: 07/05/2007 06:44 PM]

07/05/2007
3 pg, 27.1 KB

Response of Appellees Americans United For Separation of Church and State, Ms. Carol Delp, Ardene McKeag, Ms. Dorothy Redd and Ms. Sandra Sobotka to 28(j) citation , [3324778­2], filed by Innerchange Freedom Initiative Program, Prison Fellowship Ministries and Innerchange Freedom Initiative Program and Prison Fellowship Ministries in 06­2741. w/service 07/05/2007 [3326803] [06­2741] (AJL) [Entered: 07/05/2007 06:48 PM]

07/05/2007
3 pg, 27.43 KB

Response of Appellees Americans United For Separation of Church and State, Ms. Carol Delp, Ardene McKeag, Ms. Dorothy Redd and Ms. Sandra Sobotka to 28(j) citation , [3324777­2], filed by Innerchange Freedom Initiative Program, Prison Fellowship Ministries and Innerchange Freedom Initiative Program and Prison Fellowship Ministries in 06­2741. w/service 07/05/2007 [3326804] [06­2741] (AJL) [Entered: 07/05/2007 06:50 PM]

07/11/2007

MOTION of Appellants Innerchange Freedom Initiative Program and Prison Fellowship Ministries to

12 pg, 103.49 KB dismiss a portion of the appeal. w/service 07/11/2007 [3328829] [06­2741] (ARP) [Entered: 07/11/2007 06:45 PM]

07/12/2007
4 pg, 12.83 KB

MOTION of Appellees Americans United For Separation of Church and State, Ms. Carol Delp, Ardene McKeag, Ms. Dorothy Redd and Ms. Sandra Sobotka for extension of time to file response to motion dismiss portion of appeal, [3328829­3], , motion to dismiss case, [3328829­2], until 08/09/2007 at 11:59 pm. Document attached:IcAppMtExtOppMtDis.pdf. [3329313] [06­2741] (AJL) [Entered: 07/12/2007 06:37 PM]

07/12/2007
4 pg, 141.79 KB

RESPONSE of Appellants John Baldwin, Mr. Haywood Belle, Innerchange Freedom Initiative Program, Terry Mapes, Mr. Gary Maynard, Ms. Robyn Mills, Mr. Arthur Neu, Prison Fellowship Ministries and Mr. Walter Reed, Jr. , in opposition to motion for extension of time to file a response, [3329313­2], filed by Ms. Carol Delp, Ms. Sandra Sobotka, Ms. Dorothy Redd, Ardene McKeag and Americans United For Separation of Church and State in 06­2741. w/service 07/12/2007. Documents attached:7­12­07 Opposition to Motion for Extension of Time.pdf [3329314] [06­2741] (ARP) [Entered: 07/12/2007 07:14 PM]

07/12/2007
4 pg, 59.38 KB

Reply of Appellees Americans United For Separation of Church and State, Ms. Carol Delp, Ardene McKeag, Ms. Dorothy Redd and Ms. Sandra Sobotka , to response , [3329314­2], filed by Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Innerchange Freedom Initiative Program, Mr. Walter Reed, Jr., Mr. Haywood Belle, John Baldwin, Prison Fellowship Ministries, Terry Mapes and Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Innerchange Freedom Initiative Program, Mr. Walter Reed, Jr., Mr. Haywood Belle, John Baldwin and Prison Fellowship Ministries in 06­2741 , motion for extension of time to file a response, [3329313­2], filed by Ms. Carol Delp, Ms. Sandra Sobotka, Ms. Dorothy Redd, Ardene McKeag and Americans United For Separation of Church and State in 06­2741. w/service 07/12/2007. Documents attached:IcAppMtExtOppMtDisRep.pdf [3329315] [06­2741] (AJL) [Entered: 07/12/2007 09:15 PM]

07/18/2007
2 pg, 14.45 KB

JUDGE ORDER:Granting [3329313­2] motion for extension of time to file a response filed by Appellees Ms. Carol Delp, Ms. Sandra Sobotka, Ms. Dorothy Redd, Ardene McKeag and Americans United For Separation of Church and State. [3330962] [06­2741] (PAW) [Entered: 07/18/2007 11:48 AM]

08/09/2007

RESPONSE of Appellees Americans United For Separation of Church and State, Ms. Carol Delp, Ardene

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

21/23

1/6/2018

24 pg, 80.23 KB

06-2741 Docket
McKeag, Ms. Dorothy Redd and Ms. Sandra Sobotka , in opposition to motion dismiss portion of appeal, [3328829­3], filed by Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Innerchange Freedom Initiative Program, Mr. Walter Reed, Jr., Mr. Haywood Belle, John Baldwin, Prison Fellowship Ministries, Terry Mapes and Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Innerchange Freedom Initiative Program, Mr. Walter Reed, Jr., Mr. Haywood Belle, John Baldwin and Prison Fellowship Ministries in 06­2741 , motion to dismiss case, [3328829­2], filed by Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Innerchange Freedom Initiative Program, Mr. Walter Reed, Jr., Mr. Haywood Belle, John Baldwin, Prison Fellowship Ministries, Terry Mapes and Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Innerchange Freedom Initiative Program, Mr. Walter Reed, Jr., Mr. Haywood Belle, John Baldwin and Prison Fellowship Ministries in 06­2741. w/service 08/09/2007. Documents attached:IcAppMtDisOppFin.pdf [3340017] [06­ 2741] (AJL) [Entered: 08/09/2007 10:30 PM]

08/16/2007
14 pg, 50.33 KB

Reply of Appellants Innerchange Freedom Initiative Program and Prison Fellowship Ministries , to response , [3340017­2], filed by Ms. Carol Delp, Ms. Sandra Sobotka, Ms. Dorothy Redd, Ardene McKeag and Americans United For Separation of Church and State in 06­2741. w/service 08/16/2007. Documents attached:08­16­07 Reply ISO Motion to Dismiss.pdf [3342369] [06­2741] (ARP) [Entered: 08/16/2007 07:07 PM]

11/02/2007

28(j) citation filed by Appellants Innerchange Freedom Initiative Program and Prison Fellowship Ministries.

59 pg, 277.78 KB , w/service 11/02/2007 [3369065] [06­2741] (ECR) [Entered: 11/02/2007 04:52 PM]

11/02/2007
3 pg, 26.77 KB

Response of Appellees Americans United For Separation of Church and State, Ms. Carol Delp, Ardene McKeag, Ms. Dorothy Redd, Ms. Sandra Sobotka and Not Party Mr. Jerry Dean Ashburn and Mr. Bobby Shelton to 28(j) citation , [3369065­2], filed by Innerchange Freedom Initiative Program, Prison Fellowship Ministries and Innerchange Freedom Initiative Program and Prison Fellowship Ministries in 06­2741. w/service 11/02/2007 [3369091] [06­2741] (AJL) [Entered: 11/02/2007 08:10 PM]

11/05/2007
1 pg, 15.76 KB

CORRECTED certificate of service for 28(j) citation , Doc No. [3369065­2], filed by Appellants Innerchange Freedom Initiative Program and Prison Fellowship Ministries [3369300] [06­2741] (ECR) [Entered: 11/05/2007 10:31 AM]

12/03/2007

OPINION FILED ­ THE COURT: SANDRA DAY O'CONNOR, ROGER L. WOLLMAN and DUANE

31 pg, 110.21 KB BENTON. Duane Benton, Authoring Judge (PUBLISHED) [3377957] [06­2741] (PAW) [Entered: 12/03/2007 08:18 AM]

12/03/2007
2 pg, 14.58 KB

JUDGMENT FILED ­ The judgment of the originating court is AFFIRMED in part, REVERSED in part and REMANDED in accordance with the opinion. SANDRA DAY O'CONNOR, ROGER L. WOLLMAN and DUANE BENTON Hrg Feb 2007 [3377992] [06­2741] (PAW) [Entered: 12/03/2007 09:08 AM]

12/03/2007
2 pg, 16.33 KB

CLERK LETTER sent regarding misinformation on docket sheet and letter to West regarding who argued for who. [3378031] [06­2741] (PAW) [Entered: 12/03/2007 09:53 AM]

12/03/2007
2 pg, 16.19 KB

CLERK LETTER sent regarding misinformation on West letter . [3378080] [06­2741] (PAW) [Entered: 12/03/2007 10:31 AM]

12/17/2007
20 pg, 1.29 MB

PETITION for enbanc rehearing filed by Appellants John Baldwin, Mr. Haywood Belle, Innerchange Freedom Initiative Program, Terry Mapes, Mr. Gary Maynard, Ms. Robyn Mills, Mr. Arthur Neu, Prison Fellowship Ministries and Mr. Walter Reed, Jr.. w/service 12/17/2007. [3383242] [06­2741] (ECR) [Entered: 12/17/2007 05:27 PM]

01/09/2008
2 pg, 14.32 KB

JUDGE ORDER:denying [3383242­2] petition for enbanc rehearing filed by Appellants Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Innerchange Freedom Initiative Program, Mr. Walter Reed, Jr., Mr. Haywood Belle, John Baldwin, Prison Fellowship Ministries, Terry Mapes and Not Party Ms. Robyn Mills, Mr. Arthur Neu, Mr. Gary Maynard, Innerchange Freedom Initiative Program, Mr. Walter Reed, Jr., Mr. Haywood Belle, John Baldwin and Prison Fellowship Ministries. Petition for panel rehearing is also denied. Hrg Feb 2007 [3390065] [06­2741] (PAW) [Entered: 01/09/2008 03:03 PM]

01/16/2008
2 pg, 14.34 KB

MANDATE ISSUED. [3392424] [06­2741] (PAW) [Entered: 01/16/2008 12:16 PM]

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

22/23

1/6/2018
Clear All

Documents and Docket Summary Documents Only

Include Page Numbers

0 Selected Pages:

0 KB Selected Size:

View Selected

06-2741 Docket

PACER Service Center

Transaction Receipt

8th Circuit Court of Appeals ­ 01/06/2018 12:28:52

PACER Login:

hs0328

Client Code:

Description:

Docket Report (filtered)

Search Criteria:

Billable Pages: 13

Cost:

06­2741 1.30

https://ecf.ca8.uscourts.gov/n/beam/servlet/TransportRoom

23/23

 
 United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 06-2741 ___________

Americans United for Separation of *

Church and State, et al.,

*

*

Appellees,

*

* Appeal from the United States

v.

* District Court for the

* Southern District of Iowa.

Prison Fellowship Ministries, Inc., *

et al.,

*

*

Appellants.

*

___________

Submitted: February 13, 2007 Filed: December 3, 2007 ___________

Before O’CONNOR, Associate Justice (Ret.),1 WOLLMAN, and BENTON, Circuit Judges.
___________

BENTON, Circuit Judge.

Prison Fellowship Ministries, Inc., InnerChange Freedom Initiatives, Inc., and employees of the Iowa Department of Corrections in their official capacities (DOC), appeal the declaratory judgment and equitable relief entered in favor of Americans United for Separation of Church and State, individual inmates, contributors to the

1The Honorable Sandra Day O’Connor, Associate Justice, Supreme Court of the United States (Ret.), sitting by designation.

inmates’ telephone accounts, and an Iowa taxpayer. Ams. United for Separation of Church and State v. Prison Fellowship Ministries, 432 F. Supp. 2d 862 (S.D. Iowa 2006). Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.
I.
After a bench trial, this court reviews de novo legal conclusions and mixed questions of law and fact. Cooper Tire & Rubber Co. v. St. Paul Fire & Marine Ins. Co., 48 F.3d 365, 369 (8th Cir. 1995). Factual findings are reviewed for clear error. Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1101 (8th Cir. 2006). Further, a
reviewing court oversteps the bounds of its duty under [Federal Rule of Civil Procedure] 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.”
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985), quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969).
A.
InnerChange offers a residential inmate program within the Newton, Iowa, medium-security facility. InnerChange, and its affiliate Prison Fellowship, are nonprofit 501(c)(3) corporations. From September 1, 1999 to June 30, 2007, the InnerChange program was funded in part by Iowa.
The purposes of InnerChange are: “Reduce the rate of re-offense and the resulting societal costs” and “Provide a positive influence in prison.” InnerChange’s “ultimate goal” is “to see ex-prisoners become contributing members of society, by
-2-

becoming responsible leaders in their family, church and community.” InnerChange, a Christian program, describes itself as “an intensive, voluntary, faith-based program of work and study within a loving community that promotes transformation from the inside out through the miraculous power of God’s love. [InnerChange] is committed to Christ and the Bible. We try to base everything we do on biblical truth.” Further, “Biblical principles are integrated into the entire course curriculum of [InnerChange], rather than compartmentalized in specific classes. In other words, the application of Biblical principles is not an agenda item – it is the agenda.” The DOC has no control over the selection or teaching of the InnerChange curriculum or personnel.2
The program is quartered in Newton’s Unit E. This Unit, due to construction budget constraints, has wooden cell doors to which inmates have keys, and community bathrooms with privacy dividers (thus, “dry” cells). Before InnerChange’s use, Unit E housed honor inmates. Building M at Newton also is used only by InnerChange. Building M has offices, classrooms, a computer room, a library, and a multi-purpose room, but no security cameras.
Inmates are not required to join InnerChange. No one from the DOC or InnerChange threatens punishment, reduction in privileges, or otherwise pressures inmates to participate. If inmates join, no one from the DOC or InnerChange promises a reduced sentence or earlier parole. When joining, an inmate confirms in writing that
2Prison Fellowship and InnerChange assert the district court erred in admitting testimony from a law professor/Ph.D./author to describe “Evangelical Christianity.” 432 F. Supp. 2d at 872-74. An inquiry into an organization’s religious views to determine if it is pervasively sectarian “is not only unnecessary but also offensive. It is well established, in numerous other contexts, that courts should refrain from trolling through a person’s or institution’s religious beliefs.” Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion); see also Employment Div. v. Smith, 494 U.S. 872, 887 (1990). The district court abused its discretion, as the professor’s testimony is not relevant. See Fed. R. Evid. 402. However, in light of Prison Fellowship and InnerChange’s sincere statements of their beliefs, this error is harmless.
-3-

participation is voluntary and will not affect eligibility for parole. The mandatory statement adds that the program is based on Christian values and contains religious content, but an inmate need not be a Christian to participate. Also, discontinuation may be voluntary or involuntary, and the inmate will not be penalized for voluntary withdrawal.
Iowa inmates are introduced to the program through presentations by InnerChange personnel at the various DOC institutions. The Introduction Workbook uses the Christian Bible to illustrate civic values. For example, the workbook includes Saul’s conversion on the road to Damascus, Jesus’ choosing of the apostles, and the parable of the Good Samaritan. It also contains Bible studies, such as Do You Know Jesus Personally?; Salvation; and Answered Prayer. An inmate may be eligible for InnerChange after completion of the introductory program. There is a substantial inmate waiting list eligible to join InnerChange (146 inmates as of October 2003).
InnerChange begins with a four-week orientation, followed by Phases I through IV. According to the orientation materials, InnerChange “is a Christian program, with a heavy emphasis on Christ and the Bible. All the components of the program are based on a biblical worldview. You will be expected to attend all [InnerChange] programming, including religious services.” Further:
We believe that the root of our transformation is a spiritual change. [InnerChange] is designed intentionally to help produce and nurture spiritual change in you. We focus on relationship with God and how that spreads to other relationships. We study the Bible a lot. The Bible is God’s revealed truth to us. Jesus said, “If you hold to my teachings, you are my disciples. Then you will know the truth, and the truth will set you free!” (John 8:31-32) That is the kind of transformation we are talking about.
-4-

Orientation materials contain introductory Bible studies and state that each InnerChange class is led by a biblical counselor who coaches the inmate in biblical living.
After orientation, to continue to Phase I, an inmate must sign the InnerChange Accountability Covenant, which states:
I understand that the principles in Matthew 18:12-35 will be applied to my life within the [InnerChange] community.
Those principles are
1. Error leads us to danger (vs. 12) 2. The heart of correction is to restore (vs. 13, 14) 3. It is the responsibility for those involved to reconcile on an
interpersonal level (vs. 15) 4. Peer mediation is to be utilized if necessary (vs. 16) 5. Removal from the community is a last resort (vs. 17) 6. Conflict resolution builds a stronger community (vs. 18-20) 7. Interpersonal forgiveness of others is a condition of personal
forgiveness from God. (vs. 21-35)
I have read, understand, and will adhere to the above principles as a condition of my participation in the [InnerChange] program.
Each day in Phase I, which lasts 12 months, opens with a 30-minute devotional where inmates pray and read aloud from Christian scripture. Required classes fill the day, with homework, including memorization of Bible verses. Classes are followed by an afternoon community meeting. There, inmates pray, make prayer requests, sing religious songs, read from the Bible, and hear a daily devotional message (by an InnerChange inmate). Evening classes begin after dinner. Friday evenings, a revival service is held; all inmate participants are required to attend and take their
-5-

InnerChange-provided Bibles. Sunday mornings, InnerChange holds church services, which all program inmates must attend.
During the typical day in Phase I, an inmate has five or six periods of free time, each lasting between 30 minutes and an hour. The DOC admits that during free time, InnerChange inmates are allowed to use computers, but other Newton inmates are not.
After completing Phase I, the inmate may enter Phase II, which lasts six months. The inmate signs a Continued Stay Agreement, to continue participation in the same basic schedule of morning devotionals, community meetings, afternoon and evening classes, Friday evening revivals, and Sunday morning services. By signing this agreement, the inmate understands that “if I fail to maintain these expectations I will be subject to disciplinary actions.” In Phase II, the inmate also is assigned an InnerChange volunteer mentor, who assists the inmate in “living the Christian life.”
InnerChange’s curriculum in Phases I and II include several mandatory religious classes, such as Experiencing God, Old and New Testament Survey, and Spiritual Freedom. InnerChange also has treatment classes, such as Substance Abuse, Anger Management, Victim Impact, Criminal Thinking, Financial Management, Family Series,3 and Marriage/Family/Parenting. InnerChange’s treatment classes have religious content. For example, InnerChange affirms that its (licensed) substance abuse curriculum contains a high level of religious content, based on the premise that “only Jesus Christ is the cure for addiction.” Anger Management goals include learning how biblical power works and how to apply it. The Criminal Thinking course has four goals, each comparing and contrasting secular concepts to superior
3The district court found that during the three months of this course, an InnerChange inmate receives “more visits than he otherwise would be allowed,” allowing “greater exposure to loved ones than he would otherwise have without the programming.”
-6-

biblical truth and Christian ethics. The only thoroughly secular course is Computer Training, which meets two hours each week.
To measure progress in Phases I and II, InnerChange used a “Fruit of the Spirit” evaluation. (In 2005, this form was changed to a Quarterly Goals Review based upon civic virtues.) This evaluation rated the inmate’s progress based on characteristics in Galatians 5:13-26. An inmate’s failure to meet expectations, or low Fruit of the Spirit score, could result in dismissal from InnerChange. For example, in dismissing one inmate, the entire treatment team met and discussed his progress, concluding:
your conduct has been excellent according to security standards, and you are a hard worker. With you as a member you have always completed your work and assignments, however, you are not displaying the growth needed to remain in the program. Your Focus is not on God and His Son to Change you.
(No discipline was imposed on this inmate upon dismissal from InnerChange.) Most dismissals, however, were the result of minor infractions and attitudinal deficiencies.
Additionally, InnerChange staff, without DOC personnel, supervise inmates in classes, activities, and recreation. The DOC has authorized InnerChange staff to write and issue a disciplinary “behavior report” on a participating inmate. After seven reports, the inmate receives, from a DOC officer, a “major report,” indicating a serious rule violation. The inmates who testified at trial stated that InnerChange staff possess many of the same duties as corrections personnel.
After Phase II, if the DOC places a participating inmate in a work release center, he may enter Phase III. Phase IV begins if an InnerChange inmate is released from confinement. During these Phases, the inmate is required to stay employed and attend church each Sunday and at mid-week (at the church agreed to by InnerChange, for the first three months after release).
-7-

B.
The contractual and monetary relationship between Prison Fellowship, InnerChange, and the DOC developed over a number of years. In 1997, the new Newton facility faced budgetary restraints, overcrowding, and lack of appropriate programs. Prison administrators rank effective programs a close second to overcrowding in addressing prisoner security and safety concerns. Corrections officials searched for innovative ways to meet programing needs. An InnerChange program in Texas was examined to determine if it would work at Newton. A search also was conducted for other organizations with similar services. Although there were several providers of values-based programing, InnerChange was the only organization officials found that offered a long-term, values-based, residential program with excellent post-release services.
Officials were concerned with the constitutionality of InnerChange’s religious model but concluded, due to budgetary constraints, that it was the only way to provide necessary programing. If the budget allowed, corrections officials gladly would offer a broader spectrum of values-based programing. InnerChange’s volunteers and donors enable it to provide in-prison and post-release programing at a greatly reduced cost to the state.
In 1998, Iowa’s General Services Department publicly issued a request for proposals to establish a non-compensated, values-based, pre-release program at Newton. Prison Fellowship and InnerChange, jointly, submitted the only proposal. Their submission, however, sought partial state funding. The DOC accepted the proposal.
In March 1999, Prison Fellowship, InnerChange and the DOC contracted for program services, with reimbursement for non-religious costs and expenses. Under an extension clause, the contract covered September 1999 to June 2002. In the first
-8-

year of the contract, the DOC paid InnerChange $229,950, with all the money coming from the Inmate Telephone Rebate Fund. (In 2003, the law was amended to delete the term “Rebate.”) By statute and regulation, expenditures from this fund are at the discretion of the DOC for the benefit of inmates. Iowa Code § 904.508A; Iowa Admin. Code r. 201-20.20(1)-(5). In the contract’s second year, the DOC paid InnerChange $191,625 from the same fund. InnerChange’s operating costs at Newton were $506,181 the second year. In the third year, InnerChange was paid $191,625 from the fund toward its operating cost of $578,995.
Nearing the expiration of the contract in 2002, the General Services Department issued a request for proposals to the general public to continue a values-based, prerelease program at Newton. InnerChange submitted the only proposal, again accepted by the DOC (with Prison Fellowship no longer a party to the contract).
A contract was entered, renewable for one-year terms from July 2002 to June 2005. It provided state funding for the non-religious parts of the program. In the contract’s first year, 2002 to 2003, InnerChange’s operating expense was $603,063. The DOC paid InnerChange $191,625 from the Telephone Rebate Fund. This was the last year that rebate funds were paid to InnerChange. Additionally that year, the Iowa legislature appropriated $172,591 to the DOC “for a values-based treatment program at the Newton correctional facility.” This appropriation was used to expand the InnerChange program to the Release Center at Newton (a minimum-security facility one mile from the main facility). The appropriation came from the Healthy Iowans Tobacco Trust (proceeds from the master tobacco settlement between the state and tobacco manufacturers). During the contract’s second year, 2003 to 2004, the legislature appropriated $310,000 from the Tobacco Trust. Actual payment from the Trust to the DOC for InnerChange was $276,909. The program’s operating cost was $670,382. In the third year, 2004 to 2005, the contract was changed to a per diem payment of $3.47 for each inmate participating in the program. The legislature again appropriated $310,000, with actual payment to InnerChange of $236,532.55. InnerChange’s operating costs were $687,655.
-9-

In April 2005, the DOC issued the last request for proposals to continue the values-based, pre-release program at Newton. Two organizations responded, InnerChange and Emerald Correctional Management - a non-religious service provider. InnerChange’s proposal of $310,000 for a full array of services, including a licensed substance abuse program, was lower than Emerald’s bid of $562,000. The DOC accepted InnerChange’s proposal. In the contract’s first and second years, July 2005 to June 2007, the legislature appropriated $310,000 each year. In June 2007, the legislature refused to make a further appropriation. In accordance with the contract extension for 2007-2008, the InnerChange program is operating without state funds.
C.
Until July 2007, the DOC’s funding accounted for 30 to 40 percent of InnerChange’s operating costs. The contracts at issue mandated that government funds cover only “the non-religious aspects,” or “the non-sectarian portion.” The district court found that no clear understanding or definition of non-religious costs was developed. From the first billing (September 1999 to April 2000), the DOC expressed concern about InnerChange’s designation of religious and non-religious costs, but paid the billed amount. After reviewing the contract, the DOC Director for Offender Services concluded that “the contract doesn’t get very specific about what kinds of expenses are billable.” In 2001, the DOC services director called for a clear definition of religious versus non-religious expenses. (At trial, the director testified that the definition was not ever resolved.) The services director informed DOC officials and InnerChange that billing was generalized and did not detail why expenses were characterized as non-religious. Despite this ambiguity, the Newton warden testified that InnerChange gave Iowa far more value in non-religious programs than it paid for.
Salaries and benefits for InnerChange’s personnel were paid by the DOC on a percentage basis. The state paid 82% of the Local Director’s salary; 9% for the
-10-

Program Manager; 93% for the Aftercare Manager; 77% for the Office Administrator; and 16% for each of four Biblical Counselors (also called Case Workers). InnerChange staff did not actually divide their work time into religious or nonreligious activities or make any allocation for payroll purposes. The percentages billed by InnerChange were identical for every period (until payment changed to per diem).
As for other expenses, the InnerChange Office Administrator recorded items as religious or non-religious. Items designated as non-religious were billed to and paid for by the DOC. For example, InnerChange’s volunteer-recruitment brochure, A Prison Like No Other, was printed completely at state expense. The brochure describes InnerChange as a “24-hour-a-day, Christ-centered, biblically based, program that promotes personal transformation of prisoners through the power of the Gospel.” It represents the program as immersing “prisoner-participants in round-the-clock, Christ-centered programming” and advancing the state’s objectives of rehabilitation and recidivism reduction “with everything grounded in the Word of God.” The brochure states:
The InnerChange Freedom Initiative is our chance to demonstrate, in a way secular people will never be able to doubt, that Christ changes lives, and that changing prisoners from the inside out is the only crimeprevention program that really works.
At various times, the DOC paid for small religious gifts - key rings and bookmarks - to volunteers and graduating inmates; a subscription to a monthly Christian devotional booklet; and a “Church Copyright License” to use religious music in worship. Additionally, all land and cell phone costs were billed to the DOC. InnerChange’s postal meter and thermal tape were billed to the state without detailed accounting. The DOC paid for InnerChange’s computer hardware, software, repair, and internet account. The DOC also paid for InnerChange’s letterhead, envelopes, printer and copier toner, paper, blank videotapes, and standard office supplies. Each
-11-

month, every photocopy up to 40,000 was charged to the DOC. Copies over 40,000 were designated as religious (although the record does not reflect how many total copies were made each month).
Building M – a modular building housing InnerChange’s offices and classrooms – was constructed in 2000. By the lease-purchase contract, the Telephone Fund paid $294,017 for Building M, with ownership in the DOC since 2002.
When the DOC reimbursed InnerChange for costs or paid the per diem amount, the money was deposited in InnerChange’s bank account. From that account, InnerChange periodically transferred funds to Prison Fellowship’s general accounts, to cover program operating expenses. These general accounts also contain funds from private sources.
II.
A.
Issues of standing arise throughout this case. There are two strands in standing jurisprudence: “Article III standing, which enforces the Constitution’s case-orcontroversy requirement; and prudential standing, which embodies judicially selfimposed limits on the exercise of federal jurisdiction.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12 (2004) (internal citations and quotation marks omitted). “Article III of the Constitution limits the judicial power of the United States to the resolution of Cases and Controversies, and Article III standing . . . enforces the Constitution’s case-or-controversy requirement.” Hein v. Freedom from Religion Found., Inc., __ U.S. __, __, 127 S. Ct. 2553, 2562 (2007), quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. __, __, 126 S. Ct. 1854, 1861 (2006) (internal quotation marks omitted). “The requisite elements of Article III standing are well established: ‘A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly
-12-

unlawful conduct and likely to be redressed by the requested relief.” Id., quoting Allen v. Wright, 468 U.S. 737, 751 (1984).
In the present case, there are four categories of plaintiffs: inmates, Americans United, an Iowa taxpayer, and contributors to inmates’ telephone accounts (who are also former cigarette smokers). First, the inmates allege they altered their behavior and had direct, offensive, and alienating contact with the InnerChange program. See ACLU Neb. Found. v. City of Plattsmouth, 358 F.3d 1020, 1030 (8th Cir. 2004), adopted by court en banc, ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d 772, 775 n.4 (8th Cir. 2005). An injunction can remedy this injury. The inmates have standing.
Next, Americans United has standing if “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). The second and third factors are not disputed.
Regarding the first factor, Americans United bases its members’ standing on Iowa taxpayer status, as does the individual taxpayer plaintiff. Generally, the interest of a “taxpayer in seeing that Treasury funds are spent in accordance with the Constitution does not give rise to the kind of redressable ‘personal injury’ required for Article III standing.” Hein, __ U.S. at __, 127 S. Ct. at 2563.
Because the interests of the taxpayer are, in essence, the interests of the public-at-large, deciding a constitutional claim based solely on taxpayer standing “would be[,] not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess.”
-13-

Id., quoting Frothingham v. Mellon, 262 U.S. 447, 489 (1923) (alteration in original). There is, however, “a narrow exception to the general constitutional prohibition against taxpayer standing.” Id. at 2564, citing Flast v. Cohen, 392 U.S. 83 (1968). The exception provides that “‘a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of’ the Establishment Clause.” DaimlerChrysler Corp., 547 U.S. at __, 126 S. Ct. at 1864, quoting Flast, 392 U.S. at 105-06. This exception also applies to state taxpayer challenges of state expenditures contrary to the Establishment Clause. See Doremus v. Bd. of Educ., 342 U.S. 429, 434 (1952); Minn. Fed’n of Teachers v. Randall, 891 F.2d 1354, 1356-58 (8th Cir. 1989).
In this case, the Iowa legislature made specific appropriations from public funds “for a values-based treatment program at the Newton correctional facility” when InnerChange solely provided the program. See Hein, __ U.S. at __, 127 S. Ct. at 2565 (in Flast, the acts and expenditures warranting taxpayer standing were by express legislative mandate and appropriation). Therefore, Americans United and the individual taxpayer satisfy the narrow exception for taxpayer standing.
Finally, as for the non-inmate contributors to inmates’ telephone accounts, each paid money to a telephone account to permit an inmate to make calls. The profit or commission generated from the telephone vendor was deposited in the Inmate Telephone Fund, specifically authorized by Iowa statute. The non-inmates’ payment was a charge “correlated to a particular benefit . . . exacted in exchange for a benefit of which the payor has voluntarily availed itself . . . based on the cost of providing a benefit to the recipient.” Coal. for Fair & Equitable Regulations v. F.E.R.C., 297 F.3d 771, 778-79 (8th Cir. 2002). The non-inmates’ payments to the Telephone Fund were thus voluntary fees, not taxes. Id. The payments were not a pass-through tax, or a “mandatory” fee, as involved in the cases cited by the plaintiffs. See Freedom from Religion Found., Inc. v. Bugher, 249 F.3d 606, 610 (7th Cir. 2001). See also
-14-

United States v. United Foods, Inc., 533 U.S. 405, 408 (2001); Bd. of Regents v. Southworth, 529 U.S. 217, 221 (2000); Keller v. State Bar, 496 U.S. 1, 4 (1990); Lemon v. Kurtzman, 403 U.S. 602, 611, 616 (1971). Therefore, the non-inmate feepayers to the Telephone Fund do not have taxpayer standing. Prison Fellowship, InnerChange, and the DOC’s motion for partial dismissal, as to standing, is denied, except as to the non-inmate contributors to the Telephone Fund.
B.
Closely related to standing is mootness. Under Article III of the Constitution, federal court jurisdiction is limited to cases and controversies. Haden v. Pelofsky, 212 F.3d 466, 469 (8th Cir. 2000). The controversy must exist throughout the litigation; otherwise, the case is moot. Id. Federal courts lack power to decide the merits of a moot case. Missouri ex rel. Nixon v. Craig, 163 F.3d 482, 484 (8th Cir. 1998).
Prison Fellowship, InnerChange, and the DOC contend that any challenge to the fully performed contracts is moot. They cite several cases holding that if a litigant seeks an injunction against performance of a contract – and before the injunction is entered, the contract is fully performed – the request for injunctive relief is moot, as the court cannot enjoin completed performance. See, e.g., Agrigenetics, Inc. v. Rose, 62 F.3d 268, 270-71 (8th Cir. 1995); Curtis Indus., Inc. v. Livingston, 30 F.3d 96, 97 (8th Cir. 1994); Fauconniere Mfg. Corp. v. Sec’y of Def., 794 F.2d 350, 351 (8th Cir. 1986). This reasoning does not apply here. The district court did not enjoin already concluded contracts. Instead, it only addressed further operation of InnerChange’s program at Newton. Additionally, the dispute as to restitution, premised on the unconstitutionality of the performed contracts, is a live controversy.
Prison Fellowship, InnerChange, and the DOC next move to dismiss all Establishment challenges to the per diem payment structure, arguing such challenges
-15-

are moot because the program has not been funded since July 1, 2007. To the contrary, the voluntary cessation exception to mootness applies. “[A] defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). Prison Fellowship, InnerChange, and the DOC object, asserting that the relevant de-funding action was by the Iowa legislature, not the defendants, and the funding expired by its own terms. However, InnerChange and the DOC did act by agreeing to the contract extension that deleted funding from Iowa.
Prison Fellowship, InnerChange, and the DOC contend that Americans United has not successfully demonstrated potential recurrence of the unlawful action. This argument misplaces the burden of showing the likelihood of recurrence. “The defendant faces a heavy burden of showing that ‘the challenged conduct cannot reasonably be expected to start up again.’” Lankford v. Sherman, 451 F.3d 496, 503 (8th Cir. 2006), quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). Prison Fellowship, InnerChange, and the DOC have not met this burden. They effectively ask this court to vacate the injunction without any assurance that they will not resume the prohibited conduct. Therefore, under the voluntary cessation exception, the district court’s injunctive relief is not moot.
Finally, the cessation of government funding does not render moot the live controversy about recoupment of previous payments (discussed below in Section II.G). Prison Fellowship, InnerChange, and the DOC’s motion for partial dismissal, as it concerns mootness, is denied.
C.
Prison Fellowship and InnerChange assert they are not actors under color of state law for purposes of 42 U.S.C. § 1983. “[T]he under-color-of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter how
-16-

discriminatory or wrongful.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999), quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). However, “[i]n certain circumstances the government may become so entangled in private conduct that ‘the deed of an ostensibly private organization or individual is to be treated . . . as if a State had caused it to be performed.’” Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007), quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001).
The issue is whether “the alleged infringement of federal rights [is] ‘fairly attributable to the State.’” Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982), quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). See also West v. Atkins, 487 U.S. 53, 54 (1988) (contract physician’s medical care of a state inmate is conduct “fairly attributable to the State”). Thus, “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Brentwood Acad., 531 U.S. at 295 (internal citation and quotation marks omitted). A two-part approach determines whether there is state action:
First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible. . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.
Lugar, 457 U.S. at 937.
Regarding the first part, the alleged deprivation is a violation of the Establishment Clause. This violation is possible because of privileges created by the DOC in its contracts with Prison Fellowship and InnerChange. The DOC gave Prison
-17-

Fellowship and InnerChange access to facilities, control of prisoners, and substantial aid to effectuate the program. Thus, the privilege to Prison Fellowship and InnerChange was created by the state. Id.; but cf. Montano v. Hedgepeth, 120 F.3d 844, 848-51 (8th Cir. 1997) (in free-exercise challenge, prison chaplain’s religious acts were beyond governmental authority and could not fairly be attributed to the state).
The second, critical inquiry is whether Prison Fellowship and InnerChange can properly be classified as state actors. The Supreme Court has recognized a number of circumstances under which this requirement can be met, but “[t]he one unyielding requirement is that there be a ‘close nexus’ not merely between the state and the private party, but between the state and the alleged deprivation itself.” Wickersham, 481 F.3d at 597, citing Brentwood Acad., 531 U.S. at 295. One way a private party can appropriately be characterized as a state actor is when it is “a willful participant in joint activity with the State or its agents.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970) (internal quotation marks omitted). However, the state’s mere acquiescence in a private party’s actions is not sufficient. Wickersham, 481 F.3d at 597, citing Blum, 457 U.S. at 1004-05.
In this case, the state effectively gave InnerChange its 24-hour power to incarcerate, treat, and discipline inmates. InnerChange teachers and counselors are authorized to issue inmate disciplinary reports, and progressive discipline is effectuated in concert with the DOC. Prison Fellowship and InnerChange acted jointly with the DOC and can be classified as state actors under § 1983. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71-72 n.5 (2001) (“the private facility in question housed state prisoners – prisoners who already enjoy a right of action against private correctional providers under 42 U.S.C. § 1983”); Smith v. Cochran, 339 F.3d 1205, 1215-16 (10th Cir. 2003) (“persons to whom the state delegates its penological functions, which include the custody and supervision of prisoners, can be held liable for violations of the Eighth Amendment” in a § 1983 action); Street v. Corr. Corp. of
-18-

Am., 102 F.3d 810, 814 (6th Cir. 1996) (a private prisoner operator acted under color of state law).
In this case, Prison Fellowship and InnerChange are appropriate parties under 42 U.S.C. § 1983.
D.
On the merits, the plaintiffs invoke the Establishment Clause of the First Amendment, as applied to the states through the Fourteenth Amendment. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000). Also involved is the establishment clause of the Iowa Constitution, which is analyzed simultaneously. See Kliebenstein v. Iowa Conference of the United Methodist Church, 663 N.W.2d 404, 406-07 (Iowa 2003). The Establishment Clause erects a barrier between government and religious entities “‘depending on all the circumstances of a particular relationship.’” Lynch v. Donnelly, 465 U.S. 668, 678-79 (1984), quoting Lemon v. Kurtzman, 403 U.S. 602, 614 (1971); see McCreary County v. Am. Civ. Liberties Union, 545 U.S. 844, 867 (2005) (“under the Establishment Clause detail is key”). For those “who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970). “In each case, the inquiry calls for line drawing; no fixed, per se rule can be framed.” Lynch, 465 U.S. at 678. “In our modern, complex society, whose traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas, an absolutist approach in applying the Establishment Clause is simplistic and has been uniformly rejected by the [Supreme] Court.” Id. Instead, a court should scrutinize “challenged legislation or official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so.” Id. (emphasis added).
-19-

1.
For the contract years 2000 to 2004, Iowa made payments directly to InnerChange. In determining whether this direct aid violates the Establishment Clause, this court must “ask whether the government acted with the purpose of advancing or inhibiting religion, and . . . whether the aid has the effect of advancing or inhibiting religion.” Agostini v. Felton, 521 U.S. 203, 222-23 (1997) (internal citations and quotation marks omitted).
In the present case, the district court concluded that the DOC’s purpose in contracting with and funding InnerChange was secular: offering comprehensive programing to inmates and reducing recidivism. This conclusion is well-supported. The DOC officials were “confronted with the secular, pragmatic needs of running a state prison facility with sufficient programming in a tight budgetary environment.” The DOC officials “considered the long term nature of the InnerChange program, its supportive communal environment, and its extensive post-release care program, as the best indicators that the InnerChange program could reduce recidivism . . . .” In this case, the government did not act with the purpose of advancing or inhibiting religion.
To analyze whether aid has the effect of advancing or endorsing religion, three criteria are decisive: whether government aid (1) results in governmental indoctrination; (2) defines recipients by reference to religion; or (3) creates excessive entanglement. Id. at 234-35.4
First, “government inculcation of religious beliefs has the impermissible effect of advancing religion.” Agostini, 521 U.S. at 223. Whether funding “results in
4The district court correctly stated this test. 432 F. Supp. 2d at 914-15. It then, however, focused on a “pervasively sectarian” analysis in order to determine whether government aid had the effect of advancing religion. Id. at 917-25. This court will apply the clear framework in Agostini.
-20-

governmental indoctrination is ultimately a question whether any religious indoctrination that occurs . . . could reasonably be attributed to governmental action.” Mitchell v. Helms, 530 U.S. 793, 809 (2000) (plurality opinion), citing Agostini, 521 U.S. at 226, 230. Further, “plaintiffs must prove that the aid in question actually is, or has been, used for religious purposes.” Id. at 857 (O’Connor, J., concurring in judgment). This court does not “presume inculcation of religion; rather, plaintiffs raising an Establishment Clause challenge must present evidence that the government aid in question has resulted in religious indoctrination.” Id. at 858; see Agostini, 521 U.S. at 223-24, 226-27 (in the absence of evidence showing use of aid to inculcate religion, there is a presumption of compliance with secular restrictions).
In the present case, plaintiffs demonstrated (and defendants do not seriously contest) that the InnerChange program resulted in inmate enrollment in a program dominated by Bible study, Christian classes, religious revivals, and church services. The DOC also provided less tangible aid to the InnerChange program. Participants were housed in living quarters that had, in previous years, been used as an “honor unit,” and which afforded residents greater privacy than the typical cell. Among other benefits, participants were allowed more visits from family members and had greater access to computers.
The DOC officials stress their belief that Iowa received far more in nonreligious programs than it paid for. But plaintiffs meet their burden by citing the DOC’s statement:
The DOC’s “monitoring” of the InnerChange Program is limited to receiving and reviewing periodic service invoices from IFI [InnerChange]. The DOC does not, to be sure, involve itself in monitoring the InnerChange Program, IFI’s billing procedures, or IFI’s use of the money received from the DOC.
-21-

The presumption of compliance with secular restrictions does not apply in this case. For contract years 2000 to 2004, religious indoctrination can reasonably be attributed to Iowa’s funding.
Second, in administering aid, a government may not define recipients by reference to religion. The aid must be “‘allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis’” Id. at 813, quoting Agostini, 521 U.S. at 231; id. at 845 (O’Connor, J., concurring in judgment).
In this case, to use the aid appropriated, inmates must have been “willing to productively participate in a program that is Christian-based.” The district court found that inmates’ religious beliefs (or lack thereof) precluded their participation. For contract years 2000 to 2004, the InnerChange program was not allocated on neutral criteria and was not available on a nondiscriminatory basis.
Third, as for excessive entanglement, there was no pervasive monitoring by the DOC, though there was some administrative cooperation. See Agostini, 521 U.S. at 233-34. For the contract years 2000 to 2004, there was not excessive entanglement between Prison Fellowship, InnerChange, and the DOC.
Because the indoctrination and definition criteria indicate that InnerChange had the effect of advancing or endorsing religion during the contract years 2000 to 2004, the direct aid to InnerChange violated the Establishment clauses of the United States and Iowa Constitutions.
2.
-22-

In the 2005, 2006, and 2007 contract years, funding from the DOC to InnerChange changed from cost reimbursement to per diem payment – an attempt to make InnerChange an indirect aid program. In order to comply with the Establishment Clause, indirect aid programs must be “neutral with respect to religion,” and provide “assistance directly to a broad class of citizens who, in turn, direct government aid to religious” organizations “wholly as a result of their own genuine and independent private choice.” Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002). “The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.” Id. See also Mueller v. Allen, 463 U.S. 388, 399 (1983).
In this case, there was no genuine and independent private choice. The inmate could direct the aid only to InnerChange. The legislative appropriation could not be directed to a secular program, or to general prison programs. See Mitchell, 530 U.S. at 816 (government support for religion is permissible where aid passes through the hands (literally or figuratively) of private citizens who are free to direct the aid elsewhere). For the inmate to have a genuine choice, funding must be “available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited” and the inmates must “have full opportunity to expend . . . aid on wholly secular” programs. Witters v. Wash. Dept. of Servs. for the Blind, 474 U.S. 481, 488 (1986) (internal citations and quotation marks omitted). See also Agostini, 521 U.S. at 226-28 (no violation where the aid was provided to students at whatever school they chose to attend); Freedom from Religion Found., Inc. v. McCallum, 324 F.3d 880, 881-82 (7th Cir. 2003) (no Establishment Clause violation where parole violator could choose to enroll in “one of several halfway houses,” only one of which had a significant Christian element).
Prison Fellowship and InnerChange emphasize that from their viewpoint, they received funds only if the inmate chose them. Zelman makes clear that the relevant
-23-

viewpoint is the chooser’s (there, the parents’), not the provider’s (there, the private schools’). See Zelman, 536 U.S. at 655-56. Here, the inmate had no genuine and independent private choice because he had only one option. See id. at 652-53, 655, approving Mitchell, 530 U.S. at 842-43 (O’Connor, J., concurring in judgment) (a reasonable observer would perceive per-recipient direct aid to religious organizations differently than aid that recipients choose to use at religious or secular organizations).
The district court did not err in concluding that the per diem structure, as administered, violated the Establishment clauses of the United States and Iowa Constitutions.
E.
Prison Fellowship, InnerChange, and the DOC contend that any constitutional violation is subject to the standard in Turner v. Safley, 482 U.S. 78, 89 (1987): “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” The DOC stresses that the InnerChange program is reasonably related to legitimate penological interests, and that “Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights,” quoting Washington v. Harper, 494 U.S. 210, 224 (1990).
Generally, “a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). The Turner standard applies “only to rights that are ‘inconsistent with proper incarceration,’” and “that need necessarily be compromised for the sake of proper prison administration.” Johnson v. California, 543 U.S. 499, 510 (2005), quoting Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (emphasis in original).
-24-

This court has consistently analyzed Establishment claims without mentioning the Turner standard, even when applying that standard to Free Exercise claims in the same case. See Munson v. Norris, 435 F.3d 877, 880-81 (8th Cir. 2006) (per curiam); Murphy v. Mo. Dept. of Corr., 372 F.3d 979, 982-85 (8th Cir. 2004). In this case, there is no Free Exercise or accommodation claim, and taxpayers also assert the Establishment claims. The Turner standard thus cannot be used to validate funding violations of the Establishment Clause by the laws authorizing the InnerChange program at the Newton prison.
F.
The district court ordered Prison Fellowship and InnerChange to repay the state funds received under all the contracts (but stayed this equitable relief pending appeal). “In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow.” Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (plurality opinion) (Lemon II). The district court’s equitable relief “must be measured against the totality of circumstances and in light of the general principle that, absent contrary direction, state officials and those with whom they deal are entitled to rely on a presumptively valid state statute, enacted in good faith and by no means plainly unlawful.” Id. at 208-09.
In ordering recoupment, the district court gave no weight to the fact that specific statutes, presumptively valid, authorized the InnerChange funding. The district court made no finding of bad faith by the Iowa legislature and governor (although the court criticizes the bid process and “state officials, in all branches of state government” for permitting the InnerChange program). However, the actual finding of fact regarding the Iowa state officials is:
[T]hough evidence shows InnerChange received a warm welcome at the Dept. of Corrections Board, state Legislature, and Governor’s Office, no
-25-

evidence shows that the promotion of religion was the primary concern of those state officials in passing legislation authorizing funding.
432 F. Supp. 2d at 917. Further indicating good faith is that the legislature stopped the funding after the district court enjoined it. See New York v. Cathedral Acad., 434 U.S. 125, 130 (1977) (reimbursement for pre-injunction expenses disallowed where “[t]he state legislature . . . took action inconsistent with the court’s order”). The district court believed that Prison Fellowship, InnerChange, and the DOC had clear notice the program was plainly unlawful. The case the district court cites is distinguishable factually. See Williams v. Lara, 52 S.W.3d 171 (Tex. 2000) (a religious county-jail program held unconstitutional due to the direct participation of the sheriff in setting the program’s curriculum according to his own personal religious beliefs). The district court also cites a legal memorandum by the California DOC, which has no more weight than that of any other attorney. Even if there were some risk associated with the program, it cannot be said that resolution of this case was clearly foreshadowed. See Lemon II, 411 U.S. at 206.
In ordering recoupment, the district court did not consider the testimony of the state prison officials – credited elsewhere in the order – that the program was beneficial and the state received much more value than it paid for. In the prison context, courts defer to the judgment of prison administrators. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (applied statute by giving “‘due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources’”); Washington v. Harper, 494 U.S. 210, 223-24 (1990) (“prison authorities are best equipped to make difficult decisions regarding prison administration”); Murphy v. Mo. Dept. of Corr., 372 F.3d 979, 983 (8th Cir. 2004), quoting Goff v. Graves, 362 F.3d 543, 549 (8th Cir. 2004) (“We accord great deference to the judgment and expertise of prison officials, ‘particularly with respect to decisions that implicate institutional security’”); Iron Eyes v. Henry, 907 F.2d 810, 812 (8th Cir. 1990), quoting Pitts v. Thornburgh, 866 F.2d 1450, 1453
-26-

(D.C. Cir. 1989) (“‘issues of prison management are, both by reason of separation of powers and highly practical considerations of judicial competence, peculiarly illsuited to judicial resolution, and . . . accordingly, courts should be loath to substitute their judgment for that of prison officials and administrators’”). This deference does not insulate prison administrators’ decisions from judicial review. However, in shaping equitable relief, a court should consider the views of prison administrators, which oppose recoupment in this case.
The district court additionally cited Prison Fellowship’s ability to repay the contract funds. Standing alone, this is not sufficient as it depends solely on the defendant’s wealth and deters financially sound organizations from contracting with the government. See Lemon II, 411 U.S. at 207 (“Appellants would have state officials stay their hands until newly enacted state programs are ‘ratified’ by the federal courts, or risk draconian, retrospective decrees should the legislation fall”).
Critically, the plaintiffs did not seek interim injunctive relief to prevent payment by the DOC during litigation, strengthening Prison Fellowship and InnerChange’s reliance on those payments. See id. at 204 (reliance interest was reinforced because the “tactical choice not to press for interim injunctive suspension of payments or contracts during the pendency of the Lemon I litigation may well have encouraged the appellee schools to incur detriments in reliance upon reimbursement by the State”). In the absence of interim injunctive relief, expenses continued to be incurred, and payments spent, for the 24-hour care of inmates. See Roemer v. Bd. of Pub. Works, 426 U.S. 736, 767 n.23 (reliance was stronger where the money had “been paid out to, and spent by, the colleges”).
By the same logic, once the district court declared the funded InnerChange program unconstitutional on June 2, 2006, the defendants cannot rely on the legality of the program and cannot retain any funds for services rendered after the district court’s order. See id.; Lemon II, 411 U.S. at 194.
-27-

Given the totality of the circumstances, the district court abused its discretion in granting recoupment for services rendered before its order.
G.
Prison Fellowship, InnerChange, and the DOC object that the injunction is overbroad, claiming it bars InnerChange from ever contracting with the DOC. They cite the district court’s ultimate statement: “[T]he InnerChange treatment program is hereby permanently enjoined from further operation at the Newton Facility, or any other institution within the Iowa Dept. of Corrections, so long as it is supported by government funding.”
To the contrary, the injunction, in context, applies only to programs like those operating before the district court’s order and funded by the unconstitutional structures for those years. The court’s ultimate declaratory relief is:
[T]he contractual relationship between the state of Iowa, as managed and directed by the named state Defendants, and InnerChange and Prison Fellowship violates the Plaintiffs’ Establishment clause rights as contained in the Federal and Iowa Constitutions by impermissibly funding the InnerChange treatment program at the Newton Facility.
(emphasis added). The district court did not forever ban Prison Fellowship and InnerChange from operating in Iowa.
III.
The judgment of the district court is affirmed in part, reversed in part, and the case remanded.
______________________________
-28-