Dalack v. Village of Tequesta, Florida

• Decision Date: 25 May 2006
• Docket Number: No. 06-80342-CIV.,06-80342-CIV.
• Citation: 434 F.Supp.2d 1336
• Parties: Basil E. DALACK, Plaintiff, v. VILLAGE OF TEQUESTA, FLORIDA, Defendant.
• Court: U.S. District Court — Southern District of Florida

Page 1336

434 F.Supp.2d 1336

Basil E. DALACK, Plaintiff, v. VILLAGE OF TEQUESTA, FLORIDA, Defendant.

No. 06-80342-CIV.

United States District Court, S.D. Florida.

May 25, 2006.

Richard B. Rosenthal of The Law Firm of Richard B. Rosenthal, P.A. Miami, FL, for Plaintiff.

Edward G. Guedes and Robert Luck of Greenberg Traurig, P.A. Miami, FL, for Defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

MIDDLEBROOKS, District Judge.

THIS CAUSE comes before the Court on Plaintiff Basil E. Dalack's Motion for Final Summary Judgment [DE # 13]. The Defendant, Village of Tequesta ("the Village"), filed a response [DE # 18] and requested consideration of its response as a cross-motion for summary judgment. After review of the parties' written submissions and oral argument, I find that the Plaintiffs Motion for Summary Judgment should be denied and the Defendant's cross-motion for summary judgment should be granted.

I. Facts

The relevant facts are not in dispute. Plaintiff Basil E. Dalack ("Dalack" or "Plaintiff') was elected to the Village of Tequesta Village Council earlier this year. He had previously served two terms on the Council, from 1999-2001 and 2001-2003. Dalack and two other newly-elected Councilmembers were to be sworn in on April 13, 2006.

The Village's charter requires each Councilmember to take the following oath before taking office:

I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution, and Government of the United States and of the State of Florida against all enemies, domestic and foreign, and that I will bear true faith, loyalty and allegiance to the same and that I am entitled to hold office under the Constitution, and that I will faithfully perform all the duties of the office of ____ on which I am about to enter so help me God.

Tequesta Village Charter, § 2.03. Dalack had taken this oath before each of his previous terms. However, upon reviewing the oath this time, Dalack concluded that he could not take it in good conscience because it asks him to "support ...the ... Government of the United States and the State of Florida." In an April 4, 2006 letter to Village Manager Michael R. Couzzo, Jr., Dalack stated that while he would happily "support, protect, and defend" the Constitution of the United States and of Florida, he does not "support" the state and federal governments because he disagrees with their policies, specifically the war in Iraq. Dalack offered to take a modified oath. He first suggested that he omit mention of the "Government" of the United States and Florida. Then he suggested that he could swear to "protect and defend" the Government, as long as he did not have to swear to "support" it. Couzzo informed Dalack that he had no power to accept the revisions, as the Charter mandates a specific oath.

On April 7, 2006, Dalack filed a complaint seeking a declaratory judgment that the Village's oath is facially unconstitutional under the First and Fourteenth Amendments of the United States Constitution.¹ His second amended complaint, filed on April 12, 2006, sought a preliminary injunction compelling the Village to keep his seat on the council open until final resolution of this case. On April 12, this Court denied his request for preliminary injunction [DE # 5].

On April 13, 2006, the other two Councilmembers were sworn in, but Dalack refused to take the oath.² His seat currently remains open, and the Village has apparently not announced any plans to fill the seat.

II. Historical Background

Oaths of allegiance date back to feudal times. Imbrie v. Marsh, 5 N.J.Super. 239, 68 A.2d 761, 763 (1949). At common law, every citizen owed an "obligation of fidelity and obedience ... to the government under which he live[d]." Carlisle v. United States, 83 U.S. 147, 155-56, 16 Wall. 147, 83 U.S. 147, 155-56, 21 L.Ed. 426 (1872). According to Blackstone, a loyalty oath did not actually increase an individual's obligations; the oath merely sought to reinforce the social tie by "uniting it with religion." 1 WILLIAM BLACKSTONE, COMMETARIES, 369.

As early as 1562, members of the English House of Commons took oaths recognizing the Queen as the supreme ruler of England both in spiritual and worldly matters. A 1609 oath required members to swear that the King was the lawful King and could not be removed by the Pope. F. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 364-66 (1961) (cited in John J. Concannon III, The Pledge of Allegiance and the First Amendment, 23 SUFFOLK U.L. REV. 1019, n. 8. (1989)). These oaths mixed religion and the state in a time when rulers dictated their nation's accepted religion and "equated right religious observance with good citizenship." Harold M. Hyman, To TRY MEN'S SOULS: LOYALTY TESTS IN AMERICAN HISTORY, 1 (University of California Press 1959) ("Hyman"). Colonists settling in Virginia and Massachusetts brought similar oaths to the new world in the name of religious and political conformity. Id. at 15.

Around the time of the American Revolution, several of the new American states amended prior oaths of allegiance to the King to instead require their public officials to swear loyalty or allegiance to the state's constitutional government. In 1776, the New Jersey legislature required public officers to swear "I do and will bear true faith and allegiance to the government established in this State under the authority of the people." See Imbrie, 68 A.2d at 763. The Delaware Constitution of 1776 contained a similar oath to "bear true allegiance to Delaware State [and] submit to its constitution and laws."³ 4 THE FOUNDERS' CONSTITUTION, Article 6, Clause 3, Document 2 (Philip B. Kurland & Ralph Lerner eds., 2000) ("Founders' Constitution") (internal citation omitted). Vermont's 1777 Constitution contained an oath of "fidelity and allegiance." Id. at Document 3. Its current Constitution retains a pledge not to "do any act or thing injurious to the Constitution or Government [of Vermont]." VT. CONST., ch. II, sec. 56 (emphasis added). Since 1780, the Massachusetts Constitution has included the oath, "I, A.B., do solemnly swear, that I will bear true faith and allegiance to the Commonwealth of Massachusetts, and will support the Constitution thereof."⁴ Founders' Constitution, at Document 4. By 1778, each state had a loyalty oath, and the Continental Congress authorized an oath for military and civilian officers swearing loyalty to a free America and denying allegiance to King George. Hyman, at 82. Indeed, founders George Washington and Thomas Jefferson agreed that only those willing to swear loyalty to American independence should enjoy the "full rights" of citizenship. Id. at 85.

Florida's original Constitution, ratified in 1838, contained an oath for members of the state legislature to "preserve, protect, and defend the Constitution of this State and of the United States." FLA. CONST. of 1838, art. VI, sec. 11 (available at: http://www.florida memory.com). After the Civil War, Florida enacted a new Constitution in order to rejoin the Union. The new Constitution required state legislators to take an oath identical to the one at issue here, including the promise to "support, protect, and defend the Constitution and government of the United States, and of the State of Florida." FLA. CONST. of 1868, art. XVI., sec. 10 (available at: http://www.florida memory.com) (emphasis added).⁵

Of course, the United States Constitution itself mandates its own oaths. Article II, section 1, prescribes a specific oath for the President to take before assuming office:

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.

U.S. CONST., art. II, sec. 1, cl. 8. Article VI mandates that Representatives and Senators, "and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and the several States, shall be bound by oath or affirmation, to support this Constitution." Id., at art. VI, cl. 3. The Framers apparently included this requirement in order to affirm the authority of the federal government and the supremacy of federal law in its enumerated areas of power. See THE FEDERALIST, No. 27 (Alexander Hamilton) (McLean ed. 1788). State officials were required to swear support for the Federal Constitution because they would have a critical role in effectuating the Federal Constitution and Federal laws. Id., No. 44 (James Madison); Joseph Story, COMMENTARIES ON THE CONSTITTION OF THE UNITED STATES, vol. 3 § 1839 (1833). While the oaths were not completely without controversy,⁶ most of the disagreement about them centered around their religious nature rather than their demand of loyalty. See Founders' Constitution.

Reviewing these origins suggests that pledging support or allegiance to the Constitution or the Government have traditionally been viewed as one and the same, the Government being the manifestation of the Constitution's plan. In requiring state officers to swear to support the Constitution, Article VI was establishing loyalty and support for the federal government itself. Seventy-two years after the Constitution's enactment, President Lincoln, in his first inaugural address, used the terms Constitution and Government interchangeably. After swearing to "preserve, protect, and defend the Constitution," Lincoln addressed the Confederate rebels: "You have no oath registered to heaven to destroy the Government, while I shall have the most solemn one to `preserve, protect, and defend it.'" See Robert F. Blomquist, The Presidential Oath, The American National Interest, and A Call for Presiprudence, UMKC L. REV. 73 1, 18 (2004) (citing Joint Congressional Committee on Inaugural Ceremonies, Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10 (1st Sess.1989)).

III. Case Law

The United States...