Suit: Chaplain policy violates Constitution

SANDPOINT — The battle lines are drawn in a federal lawsuit alleging a Bonner County Jail chaplain policy violates the U.S. Constitution.

Former jail chaplain Scott Herndon filed suit against the county arguing he had to abdicate his First Amendment rights in order to minister to inmates held at the jail.

Herdon’s suit was filed in Idaho’s U.S. District Court in May. It seeks to restore Herndon’s access to the jail and strike down the policy at issue as a restriction on freedom of speech. The county, Sheriff Daryl Wheeler and Sheriff’s Chaplain Phil Kinzler are named as defendants.

In June, Bonner County Deputy Prosecutor Scott Bauer filed an answer to the complaint which denies Herndon’s claims. A telephonic scheduling conference in the case is set for today, federal court records indicate.

Herndon’s counsel, Sandpoint attorney D. Toby McLaughlin, contends in court documents that his client was effectively denied access to the jail unless he waived his First Amendment rights.

At issue is a policy which bars jail chaplains from performing personal services for any inmate without prior approval from superiors. Personal services include making phone calls, writing letters or delivering packages on behalf of inmates, according to the policy.

Herndon served as a chaplain to male inmates at the jail during a nine-month period last year. He was denied access to the jail after sending a letter to 1st District Judge Fred Gibler which questioned the treatment of Keith Allen Brown, a Priest Lake man awaiting trial on a charge of first-degree murder.

At the time, Brown’s fitness to proceed in the case was in question. The court found Brown had a “mental disease” and lacked the capacity to make informed decisions about his treatment for the purported mental defect. However, Brown was allegedly never advised of a diagnosis, which would have been contrary to state law.

“Since inmate Brown alleged that this had not been done, Herndon reasonably believed that there had been a violation of law and an issue of public concern,” McLaughlin said in the complaint.

The psychological report used to determine Brown’s fitness is a sealed document and the contents of the report have never been divulged in court.

Brown was committed to the Idaho Maximum Security Institution in Kuna for several months and returned to Bonner County to stand trial for the January 2007 shooting death of Leslie Carlton Breaw and possessing a $56,000 escrow check belonging to the slain man.

Brown, 48, insists he is innocent of murder and has stated Breaw was shot accidentally during a struggle over .22-caliber rifle. Brown maintains Breaw was the aggressor during the confrontation.

Brown’s trial is scheduled for March 2010.

In the meantime, Herndon was asked to resign from his position but declined to do so, which prompted county officials to  prohibit Herndon from entering the jail.

McLaughlin argues the chaplain policy amounts to a violation of the right to freedom of speech and free exercise of religion.

Bauer rejects those assertions and points out that Herndon entered into the chaplain agreement “under no protest or compulsion” and then proceeded to knowingly violate it.

“By providing said information to Judge Fred Gibler without having (it) cleared in advance by proper institutional authorities, Plaintiff did break his oath,” Bauer wrote.