Society of Separationists, Inc. v. Herman

Citation959 F.2d 1283
Decision Date17 April 1992
Docket NumberNo. 90-8660,90-8660
PartiesSOCIETY OF SEPARATIONISTS, INC., Plaintiffs-Appellants, v. Guy HERMAN, Judge of the Travis County Court at Law, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

John W. Vinson, Austin, Tex., for plaintiffs-appellants.

Ken Oden, Travis County Atty., James W. Collins, Director, Civ. Div., Austin, Tex., for defendants-appellees.

Javier P. Guajardo, Asst. Atty. Gen., Renea Hicks, Sp. Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, Tex., for intervenor State of Tex.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, GOLDBERG, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA and DeMOSS, Circuit Judges.

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 habeas 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,...

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