Society of Separationists, Inc. v. Guy Herman, Judge of the Travis County Court at Law

959 F.2d 1283, 1992 U.S. App. LEXIS 7227, 1992 WL 76044

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 17, 1992
• Docket: 90-8660
• Status: Published

Opinions

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Robin Murray-O’Hair and the Society of Separationists alleged that a state judge excluded O’Hair from a venire and held her in contempt because she refused on religious grounds either to swear or to affirm to answer voir dire questions truthfully. They sought damages as well as declaratory and injunctive relief for violating their rights under the Free Exercise Clause of the First Amendment. The district court granted defendants’ motion for summary judgment, and a divided panel of this court agreed that immunity barred an award of damages. The panel granted a declaratory judgment, however, which dictated how state judges should handle a prospective juror’s refusal to swear or affirm in the future. We granted rehearing en banc and, without reaching the underlying merits, conclude that plaintiffs lack standing to seek a prospective remedy.

I.

O’Hair is an atheist and a member of the Society of Separationists, a national atheist organization dedicated to the separation of church and state. In December of 1987, she was summoned and appeared for jury duty in Travis County, Texas. A deputy court clerk told the prospective jurors to rise and take the oath which Texas requires before voir dire questioning. O’Hair objected to taking an oath, explaining that she was an atheist and could not participate in such religious exercises. Judge Guy Herman called her to the bench and told her that in lieu of an oath, she could affirm that she would answer the voir dire questions truthfully. She stated that she also considered' an affirmation religious and therefore could not affirm. Judge Herman told her to be seated while the other jurors were sworn in. He then directed her to his regular courtroom for a full hearing.

At this hearing, O’Hair was accompanied by her attorney. The judge said that he respected O’Hair’s constitutional right to freedom of religion and therefore would “offer an affirmation without any recognition or any statement, any reference to God or anything of that nature.” O’Hair again refused, repeating her belief that an affirmation was just as religious as an oath. The judge then explained that O’Hair could be held in civil contempt if she refused and that he was not asking her to take an oath and swear to God as to her qualifications for jury service. He was only asking her to affirm that she would give true answers to whatever questions were propounded to her. O’Hair replied that an affirmation was in her understanding a religious statement. No specific form of affirmation was tendered by Judge Herman. The judge did not ask O’Hair what form of assurance of truthfulness would meet her objections, and O’Hair offered none. When she continued to refuse to affirm, Judge Herman found her in civil contempt. She was jailed and released on bond approximately six hours later. O’Hair filed a petition in Travis County district court for a writ of habe-as corpus, which was rendered moot when Judge Herman commuted her contempt sentence to the six hours served.

O’Hair and the Society of Separationists then sued Judge Herman, Travis County Judge Bill Aleshire, Travis County, the “Travis County court system,” and the clerk, sheriff, and court bailiffs of Travis County in federal district court. They asked the court, inter alia, to “declare the juror oath practice as engaged in by defendants (a judicial coercion of a religious exercise) to be unconstitutional under the First Amendment” and to “grant injunctive relief, both temporary and permanent, against the continuation of such unconstitutional jury oath practices by judges and other public officials.” They also sought $2 million in actual damages and $3 million in punitive damages.¹

The district court granted defendants’ motion for summary judgment. A divided panel of this court affirmed in part, reasoning that all of the defendants other than Judge Herman were either immune, were nonexistent entities, or were otherwise improperly named. They found Judge Herman immune from suit for damages, but recognized that judicial immunity did not bar prospective equitable relief. They concluded that the judge erred in debating the correctness of O’Hair’s religious beliefs rather than asking her what sort of pledge she could make to commit herself to tell the truth. Although they found injunctive relief unnecessary, they issued a declaratory judgment requiring judges to ask prospective jurors who object to the oath or affirmation requirement what form of serious public commitment would accord with their constitutionally protected beliefs.

II.

Article III of the Constitution confines the federal courts to deciding actual cases and controversies. Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The rule that litigants must have standing to invoke the power of the federal courts is perhaps the most important doctrine stemming from the case or controversy requirement. Id. Standing defies precise definition, but at the least insists that the complained of injury be real and immediate rather than conjectural, that the injury be traceable to the defendant’s allegedly unlawful conduct, and that relief from the injury must be likely to follow from a favorable ruling. Id.

In City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the Supreme Court made clear that plaintiffs may lack standing to seek prospective relief even though they have standing to sue for damages. Lyons was a Los Angeles area resident who was subjected to a chokehold by city police officers when he was stopped for a traffic violation. He obtained a preliminary injunction which prohibited the police department from using the chokehold unless death or serious bodily injury were threatened. The Court reversed. It observed that “ ‘past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.’ ” Lyons, 103 S.Ct. at 1665 (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974)). To obtain equitable relief for past wrongs, a plaintiff must demonstrate either continuing harm or a real and immediate threat of repeated injury in the future. Lyons lacked standing to obtain an injunction because it was entirely speculative that police officers would stop him again and choke him without provocation. Similar reasoning has been applied to suits for declaratory judgments. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).

O’Hair lacks standing to obtain prospective relief for the same reason that Lyons did. She suffers no continuing harm as a result of Judge Herman’s actions. Nor can she show a real and immediate threat that she will again appear before Judge Herman as a prospective juror and that Judge Herman will again exclude her from jury service and jail her for contempt. There are over half a million residents in Travis county and twenty trial judges. The chance that O’Hair will be selected again for jury service and that Judge Herman will be assigned again to oversee her selection as a juror is slim. Judge Herman’s regular duties do not include such matters. Even if O’Hair were likely to appear before Judge Herman in the future, there is little indication that they would interact in the same fashion. It is clear that the judge was not acting pursuant to any state or local rule or statute, or even some personal policy, when he failed to ask O’Hair if there were alternative ways in which she would be willing to commit herself to tell the truth.² Nor is there any reason to believe that O’Hair was acting on religious scruples in failing to propose such an alternative. Whatever the abstract merit of O’Hair’s complaint, it springs from a lack of communication between judge and prospective juror that is inherently contextual and episodic.

This court and others have often held that plaintiffs lack standing to seek prospective relief against judges because the likelihood of future encounters is speculative. In Adams v. McIlhany, 764 F.2d 294, 299 (5th Cir.1985), a Texas judge held a woman in contempt and jailed her because she had impugned his integrity in a letter. We found the judge immune from suit for damages and held that no case or controversy existed with respect to declaratory or injunctive relief. We explained that it was most unlikely that the plaintiff would again come into conflict with the judge in similar circumstances, and with the same results. In Schepp v. Fremont County, 900 F.2d 1448, 1452-53 (10th Cir.1990), the Tenth Circuit confronted a § 1983 suit against a state judge who revoked plaintiff’s probation. The court held that the judge was immune from suit for damages and that there was no actual controversy warranting the issuance of declaratory relief. The probability that plaintiff would ever again be subject to probation revocation proceedings before this judge was extremely remote. Similar cases are legion. See e.g., Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1019-20 (D.C.Cir.1991); Johnson v. Moore, 948 F.2d 517, 521-22 (9th Cir.1991); Foster v. Basham, 932 F.2d 732 (8th Cir.1991); Northern Virginia Women’s Medical Center v. Balch, 617 F.2d 1045, 1048-49 (9th Cir.1980); see also Brown v. Edwards, 721 F.2d 1442, 1446-47 (5th Cir.1984).

We must not shrink from our duty to decide a controversy, but that duty includes faithful obedience to the limits of our mandate. It is beyond our mandate to issue prospective relief every time a state actor arguably infringes a constitutional right. As the Supreme Court said in Lyons, “[i]n exercising their equitable powers federal courts must recognize ‘the special delicacy of the adjustment to be preserved between federal power and State administration of its own law.’ ” 103 S.Ct. at 1670. Principles of comity and federalism, in addition to Article Ill’s jurisdictional bar, mandate that we intervene in the management of state courts only in the extraordinary case. Id.; Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 1979, 80 L.Ed.2d 565 (1984).

The Court has been reluctant to superintend state judges in the past. In O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), nineteen black residents of Cairo, Illinois requested an injunction against a state judge and magistrate who they alleged had intentionally discriminated against them in setting bond and sentencing. The Court held that the complaint failed to allege a case or controversy. It refused to assume that plaintiffs would violate the law, be charged, tried, and subjected to discrimination by defendants. It emphasized that the requested injunction “would constitute a form of monitoring of the operation of state court functions that is antipathetic to established principles of comity.” 414 U.S. at 501, 94 S.Ct. at 679.

Even if we were inclined to fan cold embers for the heat of a present case or controversy, we would be loath to award declaratory relief on the facts of this case. The Court has observed on more than one occasion that “[t]he Declaratory Judgment Act was an authorization, not a command.” Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 582, 7 L.Ed.2d 604 (1962); Eccles v. Peoples Bank, 333 U.S. 426, 431, 68 S.Ct. 641, 644, 92 L.Ed. 784 (1948). “Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative.” Eccles, 333 U.S. at 431, 68 S.Ct. at 644. There is nothing to indicate, and we decline to presume, that Judge Herman will fail to take cognizance of applicable constitutional principles in future proceedings. Cf. Hamill v. Wright, 870 F.2d 1032, 1035-36 (5th Cir.1989).

There is, of course, a practical effect of the panel’s decision. Issuing a declaratory judgment would support an award of attorney’s fees against Judge Herman under § 1988. This is an “end run” around a defendant’s immunity. It is appropriate that we recognize that reality in determining whether declaratory relief is warranted. See Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 428, 88 L.Ed.2d 371 (1985); Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 2677, 96 L.Ed.2d 654 (1987). We should be hesitant to inhibit state judges from exercising the discretion that comes with their job by imposing costs solely to protect against a hypothetical risk of future harm. The practical concerns, combined with concerns of equity, comity, and federalism, tip the balance decisively in favor of restraint.

In finding that O’Hair lacks standing to obtain prospective relief, we need not embrace or disturb our decision in O’Hair v. White, 675 F.2d 680 (5th Cir.1982) (en banc). There we found that Madalyn Murray O’Hair had standing to assert that § 4 of the Texas Constitution excluded her from jury service because of her lack of religious belief. A state law that on its face arguably excluded atheists from serving on juries clearly presented an ongoing threat to Madalyn O’Hair’s right not to be excluded from jury service on religious grounds. Likewise courts have held that members of racial minorities have standing to obtain prospective relief from jury selection systems that are consistently administered so as to exclude them from jury service. See, e.g., Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970) (blacks had standing to obtain injunction when statistics clearly indicated that blacks were being systematically excluded in jury selection process); Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Commissioners, 622 F.2d 807 (5th Cir.1980) (Mexican-Americans had standing to obtain prospective relief when jury commissioners systematically excluded them from grand jury service over a ten year period).

This case is of an entirely different stripe. O’Hair challenges no Texas law or policy. The state of Texas was not even named as a defendant. O’Hair makes no showing that Judge Herman or other judges in Travis County or elsewhere in Texas deliberately apply the oath or affirmation requirement so as to exclude atheists. Instead, she objects to the specific events which led to her incarceration by a single judge whom she is unlikely to encounter again and whose administration of the oath or affirmation requirement is likely to vary in different circumstances.

The Supreme Court recently alluded to a similar situation in Powers v. Ohio, — U.S. -, 111 S.Ct. 1364, 1373, 113 L.Ed.2d 411 (1991). In holding that a defendant has standing to object to race-based exclusions of jurors through peremptory challenges, the Court noted the barriers to such suits by an excluded juror. It explained that “[ujnlike a challenge to systematic practices of the jury clerk and commissioners such as we considered in Carter, it would be difficult for an individual juror to show a likelihood that discrimination at the voir dire stage will recur.” Id., 111 S.Ct. at 1373 (citing Lyons). Absent evidence of some systematic practice, an excluded juror generally lacks standing to seek prospective relief, since the juror’s repeated contacts are with the system itself and not any individual players within it.

The presence of the Society of Separationists in this suit does not alter our conclusion. “An association has standing to bring suit on behalf of its members when: (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. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). The Society fails the first and the third requirements of the Hunt test.

First, it has failed to show that its members would otherwise have standing to sue in their own right. Other Society members are not aggrieved by Judge Herman’s exclusion of O’Hair from a venire. The fact that they may share O’Hair’s views of the oath or affirmation requirement is an insufficient predicate for the conclusion that they themselves are facing injury. Worth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343 (1975). We cannot exercise jurisdiction merely because O’Hair and the Society purport to represent “all individuals eligible for jury service who have deep-seated convictions against mouthing any religious dogma as a condition to jury service.” See Plaintiffs Complaint at 1. In Golden v. Zwickler, supra, the Court rejected the argument that Zwickler had a right to “a general adjudication of unconstitutionality in his own interest as well as that of others who would with like anonymity practice free speech in a political environment.” 394 U.S. at 110, 89 S.Ct. at 960. Constitutional questions must be presented in the context of specific live grievances. Id. There is no live grievance here.

Second, it appears likely that the Society’s claim would require the participation of individual members. It is often difficult for religious organizations to assert free exercise claims on behalf of their members because the religious beliefs and practices of the membership differ. See Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 2690, 65 L.Ed.2d 784 (1980).³ Nothing in this record supports the notion that Society members share O’Hair’s views regarding the religious nature of an affirmance. Speculation that this is so would be perverse indeed in a free exercise case. This is a fact intensive case — an episodic exchange between a single venire person and a state trial judge.

This case differs from those in which the Court has found that the presence of a class generates a continuing controversy even though the claim of the named plaintiff has become moot. See e.g., County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Here, there is neither a certifiable class of similarly situated individuals nor a real and immediate threat to such a class. Even if there were, they would have to demonstrate that a case or controversy existed at the time the complaint was filed. Riverside, 111 S.Ct. at 1667. O’Hair and the Society filed their complaint two years after O’Hair’s encounter with Judge Herman. Any controversy had long since subsided.

Neither O’Hair nor the Society has standing to obtain declaratory relief against Judge Herman. We do not sit to review the actions of state judges in microscopic detail when there is no continuing harm and no real threat of repeated injury. Article III “forecloses the conversion of courts of the United States into judicial versions of college debating forums.” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982). The panel held that the claim for money damages was barred by judicial immunity. We agree.

Affirmed.

1 . Appended to the complaint was the affidavit of one other atheist who had been excused from jury service by Judge Herman because he refused to affirm. This individual was not held in contempt or jailed, however.

2 . The Texas laws requiring oaths or affirmations have been narrowed by the Texas courts to mean that such oaths are to be administered in the manner most binding on the individual conscience. Madeley v. Kern, 488 F.2d 865 (5th Cir.1974); Craig v. State, 480 S.W.2d 680 (Tex. Cr.App.1972). See also Tex. Const. Art. 1 § 5; Vaughn v. State, 146 Tex.Crim. 586, 177 S.W.2d 59 (1944). These authorities establish what is really undisputed between the parties, namely that, apart from recognition that it is being made subject to the pains and penalties of perjury, Texas law does not require any particular form of words for an oath or affirmation.

3 . The Society does not raise a free exercise claim in its own behalf. When a religious organization itself suffers an actual or threatened injury as a result of defendant’s actions, it may have standing in its own right. See Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976).