1) Is there a federally protected right to modify a secular oath required for admission to the practice of law when the applicant’s religion teaches that only explicitly religious oaths are valid? Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); In re Summers 325 U.S. 561; 65 S.Ct. 1307 (1945)
2) Does the "Rooker-Feldman Doctrine" deny subject matter jurisdiction to a Federal District Court to determine the above issue if the highest state court has refused to "investigate, declare, and enforce" its merits? District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 479, 103 S.Ct. 1303, 1313 (1983).
Petitioner in this case seeks federal adjudication of religious freedom claims where state courts have refused to adjudicate the claims on their merits.
Petitioner seeks admission to the practice of law in California, and to that end seeks two modifications of the required oath, not to be imposed on any other applicant. He seeks first to add language from the Delaware Constitution of 1776:
"I ________, do profess faith in God the Father,
and in Jesus Christ His only Son,
and in the Holy Ghost, one God, Blessed for evermore;
and I do acknowledge the holy scripture
of the Old and New Testaments to be
given by divine inspiration."
This would create what has been called a "test oath." Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) Petitioner’s theology more resembles that of the framers of the Delaware Constitution than the Torcaso Court: oaths are an act of "religious worship" and must be made in the Name of God. Petitioner seeks the freedom to take such an oath voluntarily, and does not seek to have such a "test oath" imposed on any other applicant.
Petitioner seeks second to modify the oath in order to avoid the harsh effect of the Court's ruling in In Re Summers 325 U.S. 561; 65 S.Ct. 1307 (1945) Under that decision, Petitioner, a radical pacifist, would be barred from taking an oath to "support the Constitution." Petitioner believed he could modify the oath to avoid conflict with his religious beliefs while protecting all state interests by substituting (for himself and others similarly situated, but imposed on no other applicant) language taken from the decisions of this Court (and others) for the phrase "support the Constitution":
In federal district court, the State Bar contended that this case had already been adjudicated in state courts and moved for summary judgment, which was granted. The Ninth Circuit converted the res judicata ruling of the district court into a denial of jurisdiction under the Rooker-Feldman Doctrine. The proceedings which give rise to the Rooker/res judicata defense are as follows:
Or: the proceedings which give rise etc. are discussed below under Rooker.
Through informal communication by letter with the State Bar, Petitioner discerned a no-compromise attitude toward modifying the oath. Petitioner asked what administrative remedies he should pursue before petitioning the California Supreme Court for extraordinary relief through a Writ of Mandate directing the State Bar to permit an individual modification of the oath. He complied with those instructions and filed his petition with the California Supreme Court. Petitioner had supplied a very lengthy petition to which the State Bar responded with a terse, one-paragraph response alleging it was "without authority" to permit a modification of a legislatively-imposed oath. Indeed, that tribunal behaved as one "without authority": it did not attempt to adjudicate Petitioner's claims on their merits. There was no opinion or discussion of the constitutional implications of a secular oath, and Petitioner was given no opportunity to respond to the rationale of the State Bar.
Without opinion, and without hearing oral argument, the California Supreme Court refused to grant the Petition for a Writ of Mandate. In fact, the court sua sponte converted the Petition for a Writ of Mandate into a Petition for Review of the State Bar's decision not to adjudicate the issues raised by Petitioner, and the court declined to review that decision.
Plaintiff then turned to the federal district court, believing that the state court had refused to decide these issues on their merits. But the district court accepted the argument of the State Bar that when the state supreme court refused to review the State Bar's refusal to exercise authority over this case, that constituted a full adjudication on the merits.
Despite the arguments of former California Supreme Court Justice Cruz Reynoso, who joined as counsel in a petition for re-hearing, the Ninth Circuit Court concluded that Petitioner's claims had received full adjudication on the merits in the state system, and invoked the Rooker-Feldman doctrine.
This Court should take jurisdiction of this case and remand it for full litigation and decision on the merits. This for two reasons:
I. The First Amendment issues raised in this case are of national importance.
The California legislature requires attorneys to take an oath in order to be admitted to practice:
Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any [sic] attorney at law to the best of his knowledge and ability.
The State Bar has drawn frequent comparisons between California’s oath and that prescribed in the federal Constitution (Art. II, sec. 1):
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Two things are noteworthy about this oath. First, the very text of the federal Constitution provides for modification based on religious scruples. The option to "affirm" rather than swear was included for the benefit of Quakers and others who took the New Testament literally. Second, virtually every President since Washington has added additional language to that found in the text of the Constitution, namely, "so help me, God."
While Petitioner supports the separation of governmental and ecclesiastical powers, he is disturbed by the trend separating government and religion. George Washington applied this concern to the oath:
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
It is no longer sufficient to add "so help me, God" to an otherwise secular oath if one believes only a religious oath satisfies divine requirements. Petitioner notes that a logical result of current First Amendment jurisprudence (which forbids a religious and requires a secular "purpose" and "effect" for all legislation), is that even explicit use of the word "God" (e.g., "so help me, God") has been held to be a "secular" and "patriotic" instance of "ceremonial deism," "without theological . . . impact." A non-theological oath is, for Petitioner, a violation of the Third Commandment.
Thus, Petitioner believes it is vital for him to take an oath with clarity, one which is consistent with the requirements of Scripture, and not to be equated with the reigning "civil religion." The words of the 1776 Delaware oath accomplish this goal.
Justice Felix Frankfurter has said, "It should not be assumed that oaths will be lightly taken; fastidiously scrupulous regard for them should be encouraged." But courts since Torcaso have had the opposite effect. Government agencies charged with administering oaths have actively discouraged fastidiously scrupulous regard for oaths, often at the cost of adherence to conscientiously held religious beliefs. Although none of the state tribunals have commented on the constitutional issues raised by Petitioner, it is to be suspected that this case has been haunted by Torcaso. In its brief before the Ninth Circuit, the State Bar characterized the Petitioner as seeking "to substitute inappropriately a theocratic Christian oath for California’s oath of attorneys." This does not reflect any judicial decision on the merits; it is mere prejudice.
Distinguished Harvard Psychologist Robert Coles is quoted in the Readers Digest as saying,
Many schoolteachers are afraid to bring up moral and spiritual questions for fear that they violate the Constitution. It's a tragedy, intellectually as well as morally and spiritually. This might relate to the educational problems among some children. A large number of the schools' assumptions are materialist and agnostic; there's a culture conflict between families and schools. That conflict may have some bearing on what children learn and what they don't learn, and how children behave in school.
Petitioner in this case does not seek to escape the burden of an oath, but to accentuate its importance. This goal is one that was shared by the Founders of this nation.
II. The Rooker-Feldman Doctrine Was Erroneously Applied by the Ninth Circuit in this Case.
The Ninth Circuit described the Rooker-Feldman Doctrine as follows:
A plaintiff can challenge the state supreme court's denial of bar admission to a particular applicant, the validity of the state's rules governing admission, or both. See Dist. Of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 485 (1983). Lower federal courts lack subject matter jurisdiction over the first type of challenge, even if unconstitutional action by the state is alleged, because exercising jurisdiction would involve the review of a final judicial decision of the highest state court in a particular case.1 See id. at 486. Orders of a state court relating to the admission of an individual to the state bar may be reviewed only by the United States Supreme Court on writ of certiorari to the state court, and not by means of an original action in a lower federal court. See McKay v. Nesbett, 412 F.2d 846, 846 (9th Cir. 1969), cited with approval in Feldman, 460 U.S. at 484 n.16. In contrast, a general attack on a state's admission rules may be heard by lower federal courts because a state supreme court acts in a nonjudicial capacity when it promulgates such rules. See Feldman, 460 U.S. at 485, 487.
In sum, to bar a federal court from hearing a case under Rooker-Feldman, the following must be established:
The Third Circuit, following Feldman, has distinguished "judicial" and "legislative" acts from "ministerial" acts. The State Bar and the State Supreme Court both performed "ministerial" rather than "adjudicative" acts. The State Bar did not "investigate, declare, and enforce ‘liabilities as they [stood] on present or past facts and under laws supposed already to exist.’" The State Bar simply declared that it was "without authority" to modify the oath, and so no "judicial inquiry" was made into the constitutionality of a self-imposed "test oath."
The State Bar’s actions are utterly inconsistent with a "judicial inquiry." The State Bar never met with this Petitioner, conducted no hearings of any kind, did not depose the Petitioner, served no interrogatories, did not set forth its own understanding of the Torcaso or Summers cases, did not articulate its understanding of the level of scrutiny it believed was constitutionally required, nor how it applied that scrutiny to the facts in this case, of which facts it confessed, by its conduct in federal district court, to have had no knowledge, and Petitioner had no opportunity to respond to the State Bar’s legal theories. Had the State Bar intended to conduct a "judicial inquiry" to determine whether the voluntary modification of the oath was a federally protected right, an inquiry in which Petitioner’s professional future hung in the balance, it would have conducted itself according the standards of due process articulated by the Court in Willner v. Committee on Character (373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963). Since it did not, we must assume that the State Bar merely made a ministerial determination that it was "without authority" to act on Petitioner’s request for a modification of the legislatively-mandated oath.
Petitioner invited the State Supreme Court to consider the general constitutional challenge to the secular oath required by the California legislature in a petition for a Writ of Mandate which included a lengthy analysis of the Torcaso case and the meaning of "religion" in the ratifying conventions of the states. That Petition, however, was converted by the state court sua sponte into a petition to review the ministerial act of the state bar, and the state Supreme Court declined to review the action of the Bar.
It is important to note that the 9th Circuit Court’s conclusion that this case was adjudicated in the state system is based not on the fact that the State Supreme Court undertook full review of the issues in this case, but rather on the fact that the court did not. The 9th Circuit and the State Bar rely on the case of Consumers Lobby Against Monopolies v. Public Utilities Commission, 25 Cal.3d 891, 901 (1979), in which the refusal of the State Supreme Court to review a decision by the Public Utilities Commission was held to be a final adjudication on the merits for res judicata purposes. The PUC hearing was a "judicial inquiry" under Feldman standards, involving "long and complex rate proceedings entailing numerous public hearings throughout the state, at which the commission took testimony prepared by its staff, [affected business interests] and several other interested parties." 25 Cal. 3d at 898. The State Bar conducted no judicial inquiry, but only a ministerial act. Refusal of the State Supreme Court to review that ministerial act does not constitute a "judicial inquiry" sufficient to invoke the Rooker-Feldman doctrine. It remained for the district court to "investigate, declare and enforce" Petitioner’s constitutional right to take an explicitly religious oath.
Professor Chang has accurately stated the rationale of the Rooker-Feldman doctrine:
In essence, Rooker expresses the same federalism principles that Justice Rehnquist enunciated in Huffman: that intervention after trial is duplicative of the trial that has already taken place, implying a direct aspersion on the capabilities and good faith of the state courts in resolving constitutional issues, and that posttrial federal nullification is offensive to a state which has already won a determination that its policies have been violated.
Since there were no proceedings in state courts to reach the merits of this case, adjudication in the district court would not be duplicative. When the State Bar deposed the Petitioner and served him a series of interrogatories during pre-trial procedures in district court, it began taking the very first steps of Feldman’s "judicial inquiry": to "investigate, declare and expound." Holding that the State Bar conducted only a ministerial action with regard to Petitioner’s constitutional challenge to California’s secular oath casts no aspersions on that body. It is only if the State Bar contends that there was a full adjudication on the merits that any aspersions are cast, for such an adjudication would have taken place with a shocking disregard for due process.
This case is not "predicated upon a conviction that the state court was wrong." It is predicated upon a conviction that the state court was silent, and chose not to decide the merits of this case.
Petitioner Raises a General Constitutional Challenge
Even if the refusal of the State Supreme Court to review the State Bar’s decision that it was "without authority" to modify the oath is held to be a "judicial inquiry" sufficient to invoke Rooker-Feldman, that doctrine permits a federal court to hear a general constitutional challenge to rules promulgated in a legislative act.
The Supreme Court noted that to the extent Feldman "mounted a general challenge to the constitutionality" of the bar rule, the federal district court did have subject matter jurisdiction. [Feldman 460 U.S.] at 483, 103 S.Ct. at 1316. . . . A district court in reviewing a bar rule is not . . . reviewing the final judgment of a state court -- a task delegated by 28 U.S.C. § 1257 to the Supreme Court. In short, federal district courts "have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in non-judicial proceedings, which do not require review of a final state-court judgment in a particular case." Feldman, 460 U.S. at 486, 103 S.Ct. at 1217.
Petitioner was fully qualified for admission to the bar, and there were no disciplinary proceedings against him. He could at any time after passing the Bar Examination have been admitted to practice, were he willing to take the statutorily required oath. But the oath as written and interpreted by courts was contrary to Petitioner's religious beliefs. By petitioning the State Bar to accept a modified oath, Petitioner raised general constitutional questions about the oath prescribed by the California Legislature. Petitioner knew of others of like religious belief, and envisioned a favorable precedent as protecting their rights, as well as his own, including those in innumerable other professions who must take an oath.
Petitioner did not believe he could raise these claims in federal court without first petitioning the State Bar to accept a modified oath. In theory the State Bar could have accepted Petitioner's modified oath and admitted Petitioner, who would have suffered no harm. But even the denial of the petition by the State Bar was inadequate to generate a "case or controversy." The Ninth Circuit has held that there is no deprivation of federally protected rights until the State Supreme Court acts on the petition.
Petitioner thus fulfilled the requirements to bring a general constitutional challenge to the district court.
The General Constitutional Challenge was not "Inextricably Intertwined" with the State Court decision
The Ninth Circuit noted that federal courts lack jurisdiction over constitutional claims which are "inextricably intertwined" with the state court decision:
Inferior federal court jurisdiction is lacking to the extent that a plaintiff's constitutional claims are intertwined with the state court's prior determination. See Feldman,460 U.S. at 482-84 n.16 ("If the constitutional claims presented to a United States District Court are inextricably intertwined with the state court's denial in a judicial proceeding of a particular plaintiff's application for admission to the state bar, then the District Court is in essence being called upon to review the state court decision. This the District Court may not do").
Other circuits have devised two tests which the Ninth should have followed. The first examines the basis of the state court's decision; the second examines the nature of the constitutional claim.
As quoted by the Third Circuit, the Eighth Circuit Court of Appeals wrote recently:
A federal district court has jurisdiction over general constitutional challenges if these claims are not inextricably intertwined with the claims asserted in state court. A claim is inextricably intertwined if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. In other words, Rooker-Feldman precludes a federal action if the relief requested in the federal action would effectively reverse the state decision or void its ruling. Accordingly, to determine whether Rooker-Feldman bars [plaintiff's] federal suit requires determining exactly what the state court held . . . . If the relief requested in the federal action requires determining that the state court decision is wrong or would void the state court's ruling, then the issues are inextricably intertwined and the district court has no subject matter jurisdiction to hear the suit.
Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir. 1995) (citations omitted).
Commenting in Gulla v. N. Strabane, the Third Circuit said that
As this passage from FOCUS indicates, the first step in a Rooker-Feldman analysis is to determine "exactly what the state court held." Id. Accordingly, we begin by examining the judgments of the Pennsylvania courts."
When that step was taken, the Third Circuit reached the conclusion that should have been made by the 9th Circuit:
In this case, we conclude that the Gullas are not precluded from bringing their federal claims because the state court could not and did not adjudicate the merits of their constitutional claims. . . . See, e.g., Hawksbill Sea Turtle v. FEMA, 126 F.3d 461, 475 (3d Cir. 1997) (quoting 18 Charles A. Wright, et al., Federal Practice and Procedure § 4421, at 207-08 ("If a first decision is supported by findings that deny the power of the court to decide the case on the merits and by findings that reach the merits, preclusion is inappropriate as to the findings on the merits.")); Guarino, 11 F.3d at 1161-62 & n.8 ("A litigant suffers no real harm by attempting to raise his or her constitutional claim in state court: if the state court refuses to address the constitutional claim, the litigant can then raise the claim in federal court without any jurisdictional, abstention, or collateral estoppel problems.") . . . .
In FOCUS, the Third Circuit saw that
The judge did not decide FOCUS' constitutional challenge . . . or any other issue that is a predicate to the claim in the federal proceeding. In short, we have no reason to believe that in order for FOCUS to prevail in federal court, the court must decide "that the state court decision . . . is wrong." Charchenko, 47 F.3d at 983. In this respect, this situation is indistinguishable from the one we faced in Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994). In that case, some of the plaintiffs had filed petitions with the Philadelphia Court of Common Pleas asking relief on the basis of fraud and alleged constitutional violations in connection with an election. The court refused to entertain their claims asserting that it lacked jurisdiction to do so. We held that a subsequent proceeding in the district court was not barred by the Rooker-Feldman doctrine:
[T]he court was not barred under Rooker-Feldman from hearing the constitutional [claims] because these claims had not been determined by the state court, nor were they inextricably intertwined with a prior state court decision. Specifically, the court of common pleas dismissed Marks' and the RSC's claims without reaching the merits. Therefore, the district court was not faced with a situation where it was asked to review a determination of the state court.
. . . Here, the district court could (and did) find that Marks' and the RSC's fraud and constitutional claims had merit without also finding that the court of common pleas erred when it dismissed their proceedings. Marks v. Stinson, 19 F.3d at 886 n.11.
The 11th Circuit has said, "Under a Rooker-Feldman analysis we look . . . at the actual arguments of the parties and the issues decided in state court."
The facts in FOCUS parallel those in this present case:
By order of December 12, 1994, the supreme court denied that petition without giving any reason.
Once again, we conclude that a federal court determining the constitutionality of the gag orders would not need to conclude that the state court's decision was erroneous. Nor would it be required to invalidate in any way the state court's dispositive order.
The Petitioner in this case seeks to take voluntarily the kind of oath prohibited to the states by Torcaso v. Watkins. The State Bar said it was "without authority" to modify the legislatively mandated oath.. The state supreme court did not review the claimed constitutionality of a self-imposed "test oath"; its only decision was not to review the action of the State Bar in declaring itself "without authority" to modify the oath. In its brief before the state supreme court, the State Bar never referred to Torcaso. Federal Review of the state court’s decision is not sought, since the decision was strictly ministerial. The 9th Circuit should have followed the Third in looking beyond the mere fact of a final judgment by the state supreme court into the nature of that judgment.
The second test asks whether the constitutional claim complains of the state court process, or whether it arose independent of the state court decision.
In order to determine the applicability of the Rooker- Feldman doctrine, the fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment. If the injury alleged resulted from the state court judgment itself, Rooker-Feldman directs that the lower federal courts lack jurisdiction. If the injury alleged is distinct from that judgment, i.e., the party maintains an injury apart from the loss in state court and not "inextricably intertwined" with the state judgment, see infra, res judicata may apply, but Rooker-Feldman does not.
Our decision in GASH, 995 F.2d 726, explicitly considered the distinction between res judicata and Rooker-Feldman and focussed upon the idea that Rooker-Feldman was about an injury caused by the state court judgment itself. We summarized the result in Ritter v. Ross, 992 F.2d 750 (holding that Rooker-Feldman barred federal jurisdiction in case arising out of state foreclosure judgment), as follows: "[T]he Rooker-Feldman doctrine barred the litigation, because the plaintiffs' injury stemmed from the state judgment--an erroneous judgment, perhaps, entered after procedures said to be unconstitutional, but a judgment nonetheless." GASH, 995 F.2d at 728 (emphasis added). We further elaborated upon this theory of injury at the hands of the state court in our explanation of why no jurisdiction existed to consider the federal claims of GASH:
Just as in Ritter, [GASH] has no claim independent of the state court's adverse decision. To put this differently, the injury of which GASH complains was caused by the judgment, just as in Rooker, Feldman, and Ritter. GASH did not suffer an injury out of court and then fail to get relief from state court; its injury came from the [state] judgment . . . .
Id. at 728-29 (emphasis in original).[note omitted] Thus the distinction between a federal claim alleging injury caused by a state court judgment (necessarily raising the Rooker-Feldman doctrine) and a federal claim alleging a prior injury that a state court failed to remedy (raising a potential res judicata problem but not Rooker-Feldman) has been recognized in this circuit at least since our decision in GASH. [note omitted]
The Petitioner does not allege that the state court process was constitutionally defective, since the process was basically one of ministerial abstention. Petitioner’s constitutional challenge is not directed at a "judicial inquiry" in the state of California, it arose when he passed the California Bar examination, and was otherwise qualified for admission to practice, and was faced with a conflict of conscience stemming from a law apparently prohibiting the free exercise of his religion. The State Bar was "without authority" to redress this injury, and the state supreme court merely declined to review that decision. A federal court can reach the merits of a claim that a secular oath to "support the constitution" thwarts the free exercise of religion without saying that the decision in the state court was wrong.
Conclusion
In its Answer to Petitioner's complaint in Federal District Court, the State Bar of California admitted it was ignorant of the basic facts in this case, and prudently sought by deposition and a series of interrogatories to discover Petitioner's religious beliefs.