Nicholson v. Board of Com'rs of Alabama State Bar Ass'n

Decision Date01 February 1972
Docket NumberCiv. A. No. 3395-N.
Citation338 F. Supp. 48
PartiesHugh P. NICHOLSON, Plaintiff, v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR ASSOCIATION et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

COPYRIGHT MATERIAL OMITTED

J. Knox Argo, Montgomery, Ala., and Ralph Knowles (Drake & Knowles), Tuscaloosa, Ala., for plaintiff.

William H. Morrow, Jr. (Gen. Counsel, Ala. State Bar), Montgomery, Ala., for defendants Bd. of Comm'rs of Ala. State Bar Assn. and Reginald T. Hammer.

William J. Baxley, Atty. Gen., and Gordon Madison, Asst. Atty. Gen. of Ala., Montgomery, Ala., for defendant Justices of the Supreme Court of Ala.

Before RIVES, Circuit Judge, and JOHNSON and VARNER, District Judges.

OPINION

BY THE COURT:

Title 46, section 39 of the present Alabama Code1 provides an oath of office to be taken by each applicant for admission to the Alabama Bar. Plaintiff challenges that portion of the statute which requires him to close the oath with the phrase "so help me God." He contends that it would be contrary to his religious principles for him to take an oath to God before state authorities.

It has been stipulated by the parties that the plaintiff was awarded the Juris Doctor degree from the University of Alabama on June 1, 1969. He successfully completed the bar examination given in July and was approved by the Committee on Character and Fitness of the State Bar. On September 19, 1969, the plaintiff wrote the Chief Justice of the Supreme Court of Alabama2 requesting that the oath be administered to him without the phrase "so help me God." The Chief Justice denied this request and instructed the plaintiff that he would not be admitted to practice unless he took the oath in its entirety. Plaintiff subsequently refused to take the oath and was denied a license to practice law.

Plaintiff then filed an ex parte petition in the Supreme Court of Alabama asking the court to authorize that the oath be administered to him without the concluding phrase. In his petition the plaintiff asserted three alternative justifications for omitting the phrase:

(1) That the requirement of the words "so help me God" infringes "on his religious freedom as guaranteed by the Constitution of the United States";
(2) that the requirement of the phrase in question violates Article I, section 3 of the Alabama Constitution which states "that no religious test shall be required as a qualification to any office or public trust under this state; and that the civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles";
(3) that since "the Oath begins `I do solemnly swear (or affirm) that I will ....' the presence of the words `or affirm' indicates that the framers meant for alternative versions of the Oath to be acceptable."

On October 6, 1969, the Alabama Supreme Court entered the following order denying plaintiff's petition:

"Comes Hugh P. Nicholson and files his petition wherein he prays that this Court authorize the oath as an attorney, as prescribed by Title 46, Section 39, Code of Alabama 1940, be administered to the Petitioner without the use of the words, `So help me God'; and that the Petitioner be licensed to practice as an attorney at law in all the Courts of this State upon his taking such oath, without using the words, `So help me God'; and the petition being examined and understood by the Court,
"IT IS CONSIDERED AND ORDERED that the petition be and the same is hereby denied."

Plaintiff then sought a writ of certiorari in the Supreme Court of the United States which was denied on May 25, 1970. Nicholson v. Alabama, 1970, 398 U.S. 930, 90 S.Ct. 1824, 26 L.Ed.2d 94.

Plaintiff commenced this suit in July, 1971, seeking both a declaration holding that Title 46, section 39 is violative of the Federal Constitution and an injunction requiring that the defendants admit him to the practice of law. Plaintiff also impugns the constitutionality of Title 46, section 40,3 which imposes a fine for practicing law without having first taken the oath. His complaint to this Court alleges that the statutory enactment at issue is violative of rights guaranteed by Article VI of the Constitution of the United States and by the first amendment and the fourteenth amendment to the Constitution. Jurisdiction is asserted under 28 U.S.C. §§ 1343(3) and 2201 and under 42 U.S.C. § 1983. Although the complaint originally contained a claim for damages in excess of $10,000, it was later stipulated that no monetary damages are involved. In any event, the doctrines of judicial and official immunity would, in all likelihood, shield the defendants from any civil liability.4 Pierson v. Ray, 1967, 386 U.S. 547, 553-555, 87 S.Ct. 1213, 18 L.Ed. 2d 288; Brown v. Dunne, 7 Cir. 1969, 409 F.2d 341, 343; Continental Bank & Trust Co. v. Brandon, 5 Cir. 1962, 297 F.2d 928, 932. After holding an evidentiary hearing, the case is now before this Court on the request for a preliminary injunction by the plaintiff and on motions to dismiss filed by each of the defendants.

By their several motions to dismiss, the defendants have admitted, for purposes of such motions, the material facts alleged in the complaint. Jenkins v. McKeithen, 1969, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404; Coffee v. Permian Corp., 5 Cir. 1970, 434 F.2d 383, 384. Additionally, it is well settled that a complaint should not be dismissed for failure to state a claim unless it appears beyond cavil that the plaintiff can prove no set of supportive facts which would entitle him to the relief sought. Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80. Viewed in this light, it is clear that plaintiff has alleged facts sufficient to withstand the motions to dismiss for want of federal subject-matter jurisdiction.

The question then becomes whether this case should be heard by a three-judge panel. Owing to the burdensome aspects of the three-judge procedure, the Supreme Court has interpreted 28 U.S.C. § 2281 not "as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such." Phillips v. United States, 1941, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800. Thus, a three-judge panel is appropriate only when the constitutional question presented is substantial. A lack of substantiality may result either because the claim is obviously without merit or because it is unsound in light of previous decisions of the United States Supreme Court. California Water Service Co. v. City of Redding, 1938, 304 U.S. 252, 255, 58 S.Ct. 865, 82 L.Ed. 1323. Finally, the challenged statute must be of state-wide application. Moody v. Flowers, 1967, 387 U.S. 97, 101, 87 S.Ct. 1544, 18 L.Ed.2d 643; Griffin v. County School Board, 1964, 377 U.S. 218, 227-228, 84 S.Ct. 1226, 12 L.Ed.2d 256.

The statutory oath here at issue is to be taken by all prospective attorneys and thus applies throughout the State. The question whether a state may require a person who objects on religious grounds to take an oath or affirmation invoking the help of God is not frivolous and so far as we have discovered that question has not been decided by the Supreme Court of the United States. Accordingly, it is our judgment that the case be heard before a district court of three judges pursuant to 28 U.S.C. §§ 2281 and 2284.

The defendant Baxley, as Attorney General appearing for himself and for the Justices of the Alabama Supreme Court, asserts that plaintiff's cause of action is barred by Alabama's one-year statute of limitations.5 As a general proposition state statutes of limitation do truncate actions brought under 42 U.S.C. § 1983. O'Sullivan v. Felix, 1914, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980; Beard v. Stephens, 5 Cir. 1967, 372 F.2d 685, 688. If Alabama's one-year period began to run from the date on which the Chief Justice refused to administer the oath,6 this defense would seemingly prevail.7

At the outset, however, it should be noted that the relief sought in this cause is equitable in nature — that is, declaratory and injunctive. As was indicated earlier, the plaintiff seeks to recover no monetary damages. And we choose to follow the rationale espoused by the United States Supreme Court in Holmberg v. Armbrecht, 1946, 327 U.S. 392, 395-396, 66 S.Ct. 582, 584, 90 L.Ed. 743:

"The present case concerns not only a federally-created right but a federal right for which the sole remedy is in equity.... We do not have the duty of a federal court, sitting as it were as a court of a State, to approximate as closely as may be State law in order to vindicate without discrimination a right derived solely from a State. We have the duty of federal courts, sitting as national courts throughout the country, to apply their own principles in enforcing an equitable right created by Congress...
"Traditionally and for good reasons, statutes of limitation are not controlling measures of equitable relief." (Citations omitted.)

Thus, since equitable relief alone is sought on behalf of a federally-created right, the plaintiff's suit is not subject to the one-year statute of limitations in force in Alabama.

The Board of Commissioners of the Alabama State Bar Association; Reginald T. Hamner, individually and as Secretary of the Alabama State Bar Association; and William Baxley, individually and as Attorney General of the State of Alabama, have all moved that they be dismissed as parties to this action. The above-named parties argue that they are without authority to admit the plaintiff to the practice of law. Mr. Baxley contends that he is particularly without any role whatsoever in the process of admitting attorneys. The Board of Commissioners and Mr. Hamner point out in their brief in support of motions to dismiss that they "have completed the performance of all duties required of them ... and in the performance of such duties have taken no action adverse...

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