Society of Separationists, Inc. v. Herman
| Decision Date | 28 August 1991 |
| Docket Number | No. 90-8660,90-8660 |
| Citation | 939 F.2d 1207 |
| Parties | SOCIETY OF SEPARATIONISTS, INC., et al., Plaintiffs-Appellants, v. Guy HERMAN, Judge of the Travis County Court at Law, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John W. Vinson, Austin, Tex., for plaintiffs-appellants.
James M. McCormack, Asst. County Atty., Ken Oden, Travis County Atty., Austin, Tex., for defendants-appellees.
Appeal from the United States District Court for the Western District of Texas.
Before CLARK, Chief Judge, and GOLDBERG and GARWOOD, Circuit Judges.
An atheist, summoned for jury duty in a Texas court, declined to take the required pre-voir dire oath because it included a reference to God. Offered an affirmation containing a reference to God, she continued to refuse. When she was offered the opportunity to raise her hand and be affirmed without such reference, she still declined, explaining that she considered an affirmation just as religious as an oath. The judge disagreed with her belief that such an affirmation was religious, and jailed her for contempt. Released after posting bond, the woman sued under section 1983, alleging violation of the Free Exercise Clause, and seeking damages and injunctive and declaratory relief.
We hold that the judge's actions violated the potential juror's right to Free Exercise guaranteed by the First and Fourteenth Amendments. We grant a declaratory judgment requiring a judge confronted with a similar refusal to either dismiss the potential juror without penalty or accommodate such juror's constitutionally protected beliefs by allowing the use of an alternative form of avowal that both satisfies the scruples of the juror and the requirements of the judicial system. We also consider matters of stare decisis, claim and issue preclusion, standing, and immunity.
On December 15, 1987, Robin Murray-O'Hair, an American Atheist, appeared for jury duty at the Travis County Courthouse, located in Austin, Texas. She refused to take the oath required of venire members before voir dire questioning, stating that she was an atheist and could not take an oath which included a reference to God. The presiding judge, Guy Herman, offered to allow Murray-O'Hair to affirm, but the affirmation still included a reference to God, and Murray-O'Hair refused. Murray-O'Hair was told to be seated and the other jurors were sworn in.
Murray-O'Hair was told to proceed to Herman's regular courtroom, where the judge again requested that she take the oath. Now accompanied by her attorney, Murray-O'Hair restated her objections and Herman offered to allow her to raise her hand and make an affirmation without any reference to "God or anything of that nature." Murray-O'Hair declined, stating that she could not affirm because an affirmation "is just as religious as an oath." Herman warned her that if she refused to take an oath or make an affirmation, he would hold her in civil contempt. Murray-O'Hair responded that she was not trying to evade her jury duty, but sought to avoid "participating in a religious statement." The judge never inquired as to what form of assurance of truthfulness would meet Murray-O'Hair's objections. Herman and Murray-O'Hair then debated the nature of affirmations. Herman had done some legal research, based in part on cases that Murray-O'Hair had submitted to him, and he concluded that "affirmances are for atheists and other folks that do not wish to take oaths." In his view, an affirmation was not a "religious statement"; it was merely a pledge that one would give true answers to the voir dire questions and met the qualifications for jury service. Murray-O'Hair had a different view: "An affirmation, my understanding, is a religious statement." Herman responded, "The Court does not agree with you on that matter."
Murray-O'Hair continued to refuse and, ending the heretofore patient discussion, Herman ordered her jailed on the spot for a term of three days "and thereafter until you purge yourself of the contempt by taking the affirmation." She was jailed, but was released on bond approximately six hours later. She did not, or was not permitted to, resume her place in the jury pool.
Murray-O'Hair subsequently filed three separate law suits challenging Herman's actions and similar actions by other Travis County judges. First, Murray-O'Hair petitioned the Travis County district court for a writ of habeas corpus. The court denied relief, but Judge Herman subsequently commuted the contempt sentence to the six hours served. Murray-O'Hair appealed the denial of relief, but the state court of appeals dismissed the appeal as moot. 1
Second, on August 11, 1987, Murray-O'Hair and other individual plaintiffs brought suit in federal district court against the Travis County District Court and the Texas Attorney General, alleging a continuing pattern "whereby they (1) respond as requested for jury service in the Travis County District Court, (2) refuse to take a 'God' oath, and (3) are excluded by the presiding Judge from jury service." 2 The district court dismissed for failure to state a claim. We affirmed, holding that there is no constitutionally protected right to serve on a jury and adding that "[m]oreover, ... jurors are not required to swear an oath to a deity ... an affirmation [is not] the same as an oath to a deity." 3 Neither opinion fleshes out the factual context of the plaintiffs' claims; the district court simply notes that "[t]he manner of excluding the Plaintiffs from jury service varies from incident to incident," adding without explanation that "the differences are not material." 4 Neither opinion mentions Judge Herman or refers to anyone being jailed for their refusal to swear or affirm.
Third, on November 16, 1989, Murray-O'Hair and the Society of Separationists filed this section 1983 action seeking damages and declaratory and injunctive relief against Herman, Travis County Judge Bill Aleshire, Travis County, the "Travis County court system," and the clerk, sheriff and court bailiffs of Travis County. The suit, predicated on the particular exchange between Herman and Murray-O'Hair, was styled as a class action on behalf of all individuals whose religious convictions precluded them from taking the juror oath. 5 Plaintiffs claimed that Murray-O'Hair's First and Fourteenth Amendment rights had been violated because she was imprisoned for refusing to take a religious oath.
The district court decided the case on cross motions for summary judgment and on consideration of undisputed facts. The court: dismissed the Society as a plaintiff and denied class certification; found that all defendants were either immune, were nonexistent entities, or were otherwise improperly named; held that the earlier Murray decision was res judicata; dismissed plaintiffs' pendant state claims without prejudice; and imposed Rule 11 sanctions. The court later struck the award of sanctions when the defendants failed to timely submit their request for attorney's fee. The plaintiffs appealed the remaining portions of the court's order.
We hold that the previous suit does not bar this action; reinstate the Society as a plaintiff; affirm the dismissal of the defendants other than Herman; hold that Herman did violate Murray-O'Hair's Free Exercise rights; find Herman absolutely or qualifiedly immune from suit for damages; grant declaratory relief; and decline to grant an injunction.
The government argues, and the district court held, that Murray-O'Hair's constitutional claim is barred by the res judicata effect of the earlier Murray decision. We disagree. We analyze the relation between Murray and the instant case according to principles not just of res judicata, but also stare decisis, collateral estoppel, and law of the case. From any of these perspectives, however, Murray is without preclusive effect.
As an initial matter, we set out our rules on stare decisis, specifically, the law on the binding effect of prior panel decisions. In this circuit, one panel may not overrule the decision, right or wrong, of a prior panel in the absence of an intervening contrary or superseding decision by the court en banc or the Supreme Court. 6 Where two previous holdings or lines of precedent conflict, "the earlier opinion controls and is the binding precedent in the circuit." 7 Even a decision not necessary to support the ultimate ruling, such as an alternative holding, is binding. 8 Dicta, however, is persuasive authority only, and is not binding. 9
In the earlier Murray case, Murray-O'Hair and other plaintiffs argued that they had a right to serve on juries, and that they were subjected to a continuing pattern of exclusion in violation of their rights; as the district court framed the question, "Does the practice of a State trial court in excluding from jury service persons who refuse to make an oath deny a vested interest ... [or] violate the Constitutional provision of separation of church and state?" 10 The district court found no violation, holding without citation of authority that "Plaintiffs have no Constitutionally protected interest in sitting on a jury" and that "[a] jury oath which refers to a deity does not violate" the Establishment Clause; the court analyzed the juror oath using the Lemon test factors (purpose, effect, and entanglement). 11 We affirmed in an unpublished decision, holding without citation that [T]he district court dismissed the case because the plaintiffs failed to state a claim upon which relief can be granted. Specifically, the district court determined that because the right to serve on a jury is not a constitutionally protected one, the plaintiffs' cause of action had failed to state a claim. We agree. The occasion to serve on a jury is undeniably a duty, a privilege, and an opportunity for many citizens to actively and personally serve their government. Indeed,...
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