Petition — LaRocca v. Lane

Supreme Court brief1976

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IN THE

Supreme Court of the United States

1976 Term

No. a Ke 1 Q y} 5

Fatuer Vincent La Rocca, of Counsel to

Wiiuiam GaLuacuer, Attorney-In-Charge,

The Legal Aid Society, Criminal Defense Division,

Petitioner,

Hon. Morcan Lane, Judge of the Criminal Court

of the City of New York,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF NEW YORK

Wituiam GALLAGHER

WruiaM E. HELLEeRstTern

Tue Lecat Am Society

15 Park Row

New York, New York 10038

(212) 577-3428

Ernest J. Berro.orti

Micuaeut T. SULLIVAN

BarteL EncetMan & FISHMAN

One Dag Hammarskjold Plaza

New York, New York 10017

StepHen R. MacDona.p

Room 4500

140 Broadway

New York, New York 10005

Attorneys for Petitioner

Rn a alll

TABLE OF CONTENTS

Opinions Below .

Jurisdiction .................

ES ETS TE SEE TO ER EE

Constitutional Provisions Involved ............................. |

a a a Ls saduevcculenimainons bioeces

Reasons for Granting the Writ...

5 ETDS SRE Seta era Oar ane |

a Sn ae a ee

ie IN oc cciseSadscsnncevadtaneanee

3. Expression. .._ ee

4. Assistance of Counsel, Fair Trial and Due

EES Te Eas SCAR Segal ect AE ON SCE AO ROE

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APPENDICES

A—Opinion of the New York Court of Appeals

B—Opinion of the —_— Division, Second Depart-

BIN, Jac cgiicenisgs nin tan canclbg obeeosmansoiencananaiaiciadetemiidecsneedidedisaéa

C—Opinion of Supreme Court, Kings County, Crim-

TIRES RE ER SRS TS ah so ise

D—Petition Filed in Supreme Court, Kings salt

RR SI c. .< ccacssirasisinsccccaacunserbionsssecioens

E—Verified Answer to Petition Filed in Supreme

Court, Kings County, Seeking Prohibition .......

F—Affidavit of Morgan Lane, Judge of Criminal

Court of the City of New York, in Opposition to

SII « cocinstlcccaihcdasrcusenalenetusogmantiiiaaneiendialenmciaiand

PAGE

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TABLE OF AUTHORITIES

PAGE

Cases:

Everson v. Board of Education, 330 U.S. 1 (1947) ...... 10

Gillette v. United States, 401 U.S. 437 (1971) ................ 10

People v. Colon, 28 N.Y.2d 1, cert. denied, 402 U.S. 905

ge are ele eee See LO ne 10

Shelton v. Tucker, 364 U.S. 479 (1960) 000... 11

Sherbert v. Verner, 374 U.S. 398 (1963) .......... ocam 8

Tinker v. Des Moines, 393 U.S. 503 (1969) ................... 11

Wisconsin v. Yoder, 406 U.S. 205 (1972) 000000... 9

Statutes:

New York Criminal Procedure Law §300.10 ............ 10

New York Criminal Procedure Law 4370.40... 10

Miscellaneous:

I Abbo-Hannan, Tue Sacrep Canons (2d Ed. 1960) __. 7

Rasc-w ths

IN THE

Supreme Court of the United States

1976 Term

FatHer Vincent La Rocca, of Counsel to

Wim Gauiacuer, Attorney-In-Charge,

The Legal Aid Society, Criminal Defense Division,

Petitioner,

Hon. Morcan Lane, Judge of the Criminal Court

of the City of New York,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF NEW YORK

To: The Honorable Chief Justice and Associate Justices

of the Supreme Court of the United States:

The petitioner respectfully prays that a writ of cer-

tiorari issue to review the judgment of the Court of

Appeals of the State of New York entered on October 23,

1975, which, with one dissent, affirmed a judgment of the

Supreme Court of the State of New York, Appellate Divi-

sion, Second Department, which, with one dissent, reversed

a decision of the Supreme Court of the State of New York,

Kings County, Criminal Term, prohibiting respondent, a

Judge of the Criminal Court of the City of New York, from

requiring petitioner to remove his normal clerical garb,

including the Roman collar, prior to continuing as defense

counsel in a criminal jury trial.

Opinions Below

The opinion of ihe New York Court of Appeals (Ap-

pendix A) is officially reported at 37 N.Y.2d 575 (1975).

The opinion of the Appellate Division, Second Department

(Appendix B), is officially reported at 47 A.D.2d 243. The

opinion of the Supreme Court, Kings County, Criminal

Term (Appendix C), is officially reported at 77 Misc.2d 123.

Jurisdiction

The judgment of the Court of Appeals was entered on

October 23, 1975. No application for an extension of time

to file this petition has been made. This Court’s jurisdic-

tion is invoked under 28 U.S.C. §1257(3) (1970).

Questions Presented

Does a state violate the establishment, free exercise and

free expression clauses of the First Amendment to the

United States Constitution by denying a Roman Catholic

priest-attorney the right to appear as defense counsel in

a criminal jury trial dressed in his normal clerical garb,

including the Roman collar?

3°

Does a state violate the defendant’s right to assistance

of counsel and the concomitant rights to a fair trial and

to due process of law under the Fifth and Sixth Amend-

ments of the United States Constitution by removing the

defendant’s counsel, a Roman Catholic priest-attorney

solely due to a refusal by the defense counsel to remove his

Roman collar?

Constitutional Provisions Involved

First Amendment, United States Constitution:

‘*Congress shall make no law respecting the estab-

lishment of religion, or the free exercise thereof; or

abridging the freedom of speech .. .’’.

Fifth Amendment, United States Constitution:

‘« . . nor be deprived of life, liberty, or property,

without due process of law... .’’.

Sixth Amendment, United States Constitution:

‘‘In all criminal prosecutions, the accused shall...

have the Assistance of Counsel for his defense.’’

Fourteenth Amendment, United States Constitution:

‘¢ |. nor shall any state deprive any person of life,

liberty, or property, without due process of law... .’’.

Statement of the Case

Petitioner, Father Vincent La Rocca, is a validly or-

dained Roman Catholic priest and has been so ordained

for a period of over twenty-five years. He was duly ad-

mitted to practice as an attorney-at-law in the State of

New York in 1973 and is employed by the Brooklyn Crim-

inal Court Office of the Legal Aid Society’s Criminal. De-

fense Division. While pursuing his application for admis-

sion to the Bar and in all appearances before the courts of

the State of New York subsequent to his admission, Father

La Rocca has appeared in the traditional clerical garb of

a Roman Catholic priest, which includes the Roman collar.

His actions in so attiring himself have been in accordance

with the instructions of his religious superiors.

Father La Rocca was assigned by the Legal Aid Society

to represent Cecelia Daniels, charged with a misdemeanor

assault and related charges, in the case of People v. Daniels

to be tried before a jury panel. Father La Rocca had ap-

peared before the Criminal Court of Kings County as de-

fense counsel for more than one year in his priestly attire

in non-jury matters prior to his assignment to the Dantels

case. Father La Rocca had appeared with his collar before

Judge Morgan Lane, the very judge who refused to allow

Father La Rocca to proceed in the Daniels case, on a num-

ber of occasions prior thereto on non-jury matters. When,

on January 4, 1974, Father La Rocca appeared before

Judge Lane in the Daniels case, the judge, alluding to

possible prejudice of the jury, directed Father La Rocca

not to participate as defense counsel while wearing his

clerical attire. During the course of the colloquy among

Father La Rocca, Juage Lane and Mr. Penofsky, the As-

sistant District Attorney, Father La Rocca explained his

actions in wearing his priestly garb:

‘‘Mr. Penofsky: ...I know of no rule that neces-

sitates that a Roman Catholic Priest must at all times

wear his particular Roman Catholic garb.

‘‘Father La Rocca: May I respond to that?

‘‘The Court: Yes.

‘*Father La Rocca: The Bishop McGovery of this

Diocese, he has specifically designated I appear in

Court as a Catholic Priest wearing the collar and garb

of a Priest and live with the Clergy. He is a deter-

minant of the conduct of his Priests by Canonical

Law...’’

Judge Lane’s direction was issued prior to the commence-

ment of jury selection. Father La Rocca respectfully re-

fused to remove his collar, stating that he had been ad-

mitted to the Bar in the same attire and that such a ruling

infringed on his client’s Fifth and Sixth Amendment rights

as well as his own First Amendment rights. Prior to Judge

Lane’s ruling, Father La Rocca specifically stated the fol-

lowing:

‘*... We pose to the objections of the District Attor-

ney, my own First Amendment rights. My Priesthood

has extended over 25 years. I attended law school under

the Roman Collar as a Catholic Priest. . . . I further

resent the fact that we are dealing with Fifth and Sixth

Amendment rights here; Those of my client, who has

steadfastly clung to the determination that I be her

representing counsel. My own First Amendment rights,

I reiterate. It would seem to me that the criminal

procedure has developed in New York State and in

the States of the United States over a great many

years. The criminal procedure, in saying, provides in

every way by reason of voire dire and the Judge’s

charge to the Jury its own inner safeguards that such

prejudice be removed. I feel very strongly in this in-

stance that I am being denied rights as a citizen of the

United States. .. . We are being told, in fact, that

the citizens of New York State are incapable of divorec-

ing the vocation of the attorney from the guilt or in-

nocence of the defendant. I find that this kind of judg-

ment leaves much to be desired, underestimates the

intelligence of the juror upon which our very jury

system depends, and denies me and the defendant

rights which are essentially constitutional.’’

Since Judge Lane barred Father La Rocca from serving

as counsel, Father La Rocca instituted a proceeding to

prevent the enforcement of Judge Lane’s ruling. In his

affidavit in support of his petition to the Criminal Term,

to establish his right to wear clerical attire, Father La

Rocca stated that:

‘*. . . the wearing of the clerical collar at all public

functions is a continual act of worship and a symbol of

religious dedication. Removal of the clerical collar for

an appearance before a jury would offend my religious

conscience.’’ (See Appendix D, p. D-2).

The Supreme Court, Kings County, prohibited Judge

Lane from requiring Father La Rocca to remove his clerical

collar. The Appellate Division reversed and dismissed

Father La Rocca’s petition, with Justice Shapiro dissent-

ing, deciding that Father La Rocca’s ‘‘rights under the

First Amendment must yield to the reasonable regulation

of the Court when he appears to try a case before a jury’’.

This decision of reversal was affirmed by the New York

Court of Appeals, the majority concluding that ‘‘the para-

mount judicial duty to assure a fair trial’’ required such

affirmance. Associate Judge Gabrielli dissented for the rea-

sons set forth in the dissenting opinion by Justice Shapiro

at the Appellate Division.

i a i a all CM la =

Reasons for Granting the Writ

The mode of dress of a Roman Catholic cleric is pre-

scribed by Canon Law which, in effect, states that the dress

of a priest shall be determined by local custom and by the

prescription of his superiors. I Abbo-Hannan, Tue Sacrep

Canons, 194-96 (2d ed. 1960). The Third Baltimore Council,

a Church body which interpreted Canon Law in the United

States, has ruled that local custom means the priest must

wear his oman collar while functioning in the public

forum. Ibid. In denying Father La Rocca the right to ap-

pear in his clerical garb before a jury as defense counsel

in & criminal trial, the New York Court of Appeals has

decided an important question of federal constitutional law

in a way not in accord with the applicable decisions of this

Court. Those decisions indicate that such a denial is a vio-

lation of the establishment, free exercise and free expres-

sion mandates of the First Amendment, the fair trial, due

process and assistance of counsel mandates of the Fifth

and Sixth Amendments and the due process mandate of

the Fourteenth Amendment to the United States Consti-

tution.

If this decision is allowed to stand, not only will con-

stitutionally protected rights of Father La Rocca have been

disregarded, but also the rights of many clergy of various

faiths will have been severely limited. Furthermore, carried

to its logical conclusion, the decision rendered by the New

York Court of Appeals would require that any clerical or

non-clerical symbol, practice, expression or inference which

might find its way into the trial process, could, based. on

determination of the trial judge alone, be grounds for re-

moval of defense counsel.

Argument

1. Free Exercise: In its determination that Father La

Rocea should not be permitted to wear his Roman collar,

the Court of Appeals disregarded the clear mandates of

this Court by permitting a major infringement on Father

La Rocea’s free exercise rights, absent the presence of a

compelling interest warranting such an infringement. The

preferred position of these rights was ignored; the Court

instead reached its decision by balancing Father La Rocca’s

constitutionally protected free exercise rights against the

judicial duty to assure a fair trial for the state in a criminal

prosecution. No consideration was given to, nor support

cited for, the status of this judicial duty either as a com-

pelling interest or otherwise. Whatever the nature of that

duty, no constitutional definition was or could be given

thereto. Nevertheless, the Court of Appeals held that duty

to be more compelling than the First Amendment rights

involved.* Going further, the Court of Appeals failed to

consider the available alternative means which would have

allowed protection of the impartiality of the trial while also

preserving Father La Rocca’s constitutionally protected

rights.

In Sherbert v. Verner, 374 U.S. 398 (1963), this Court

required, prior to permitting any infringement on the pre-

ferred First Amendment free exercise rights of an individ-

* The Court of Appeals conceded that Father La Rocca had al-

ledged an interest under the free exercise clause (see Appendix A,

p. A-8) and also noted that Father La Rocca’s claim that his wearing

of the collar in the public forum was a result of the designation of his

religious superiors was uncontroverted. (See Appendix A, p. A-11.)

eet

ual, that a compelling state interest be shown to exist,*

and that, in addition, no alternative form of regulation ex-

ists which would eliminate the abuse without such infringe-

ment See also, Wisconsin v. Yoder, 406 U.S. 205 (1972).

Since this Court has set forth time and again the con-

siderations which must be examined and satisfied prior to

permitting infringement of First Amendment free exercise

rights, and since the Court of Appeals disregarded those

standards, the Court of Appeals based its determination on

conjecture as to the possibility of prejudice rather {han on

any actual evidence of prejudice. Indeed, Father La Rocca

was not disqualified after an unsuccessful voir dire, but was

removed without any questions being put to any prospective

juror. Since there exists no compelling state interest, and

since there are a multitude of alternative means to combat

* In his dissenting opinion in the Appellate Division, Justice Sha-

piro stated:

“Hence, when the majority seeks to apply the compelling-state-

interest test by a process of balancing the competing values of the

State’s right to a fair trial against the petitioner’s right to a free

exercise of religion, without a prior determination of whether the

preservation of the former in the circumstances of this case re-

uires that the First Amendment right of the petitioner be in-

ringed, it is, in fact, giving mere lip service to the applicable

compelling-state-interest test established to make clear the pre-

ferred position of that First Amendment right and is applying a

completely different test, in negation of the concededly applicable

Federal standard.” (See App. B, p. B-17.)

In contrast, Chief Judge Breitel, writing the majority opinion of the

Court of Appeals disregarded the compelling state interest test and

applied a balancing test, stating :

“The Supreme Court cases construing the Freedom of Exercise

Clause are not particularly helpful. * * * In the instant case,

however, the particular limited religious practice has been found

to conflict with the State’s paramount duty to insure a fair and

impartial trial. The respective interests must be balanced to

determine whether the incidental burdening is justified.” (App.

A, p. A-10.)

any potential abuse,* Father La Rocca’s First Amendment

free exercise rights have been unconstitutionally infringed.

9. EsTaBLIsHMENT: Thi Court set forth the guidelines

that must be examined and satisfied whenever the question

of establishment of religion arises when it warned that the

Constitution ‘‘. . . requires the State to be neutral in its

relations with groups of religious believers and non-believ-

ers; it does not require the State to be their adversary.

State power is no more to be used so as to handicap reli-

gions than it is to favor them.’’ Everson v. Board of Edu-

cation, 330 U.S. 1, 18 (1947) (emphasis added). Almost 25

years thereafter, this Court once again reiterated those

guidelines and condemned any attempts to vary from that

neutrality. Gillette v. United States, 401 U.S. 437 (1971).

Mr. Justice Marshall, speaking for the majority, stated in

Gillette that ‘‘.. . the Establishment Clause stands at least

for the proposition that when government activities touch

on the religious sphere, they must be secular in purpose,

evenhanded in operation, and neutral in primary impact.”’

401 U.S. at 450.

The Court of Appeals failed to consider this neutrality

proclamation and, consequently, in its refusal to allow

Father La Rocea to practice law before a jury in the re-

quired attire of his office, the clergy of all religions, save

those requiring distinctive dress, are preferred while those

subject to religious dress codes are handicapped. This re-

sults in a direct violation of the establishment clause as

interpreted by this Court.

*For example: (1) voir dire; (2) the mandatory preliminary

instructions of the court [N.Y.C.P.L. $370.40 (McKinney, 1971) ] ;

(3) the court's charge to the jury [N.Y.C.P.L. $300.10 (McKinney,

1971)]; (4) the court’s right to give miscellaneous instructions to

the jury [People v. Colon, 28 N.Y.2d 1, cert. denied, 402 U.S. 905

(1971)]; (5) the court's inherent right to regulate closing argument.

AO A ee I er rl ole a ON hte et

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3. Expression: Even without the religious overtones

of Father La Rocca’s situation, First Amendment values

are still before this Court for vindication since attire has

been held to be a silent and passive expression of opinion,

akin to pure speech, and, consequently, covered by the com-

prehensive protection of the First Amendment. Tinker v.

Des Mowmes, 393 U.S. 503 (1969). The facts before this

Court bear a definite analogy to those underlying the facts

in Tinker, wherein black armbands (but not iron crosses

or political buttons) were restricted. Only the garb of a

Roman Catholic priest, and not any other political, frater-

nal or religious insignia, is restricted by the decision below.

The prohibition against the expression of one particular

opinion, in the absence of a constitutionally valid reason to

regulate such opinion, cannot be tolerated. Furthermore,

as in the case of free exercise requirements, the presence

of a substantial governmental purpose itself is not enough:

‘‘Even though the governmental purpose be legitimate

and substantial, that purpose cannot be pursued by

means that broadly stifle fundamental personal liber-

ties when the end can be more narrowly achieved. The

breadth of legislative abridgment must be viewed in

light of less drastic means for achieving the same basic

purpose.’’ Shelton v. Tucker, 364 U.S. 479, 488 (1960)

(footnotes omitted) (emphasis added).

The peremptory treatment by the Court of Appeals of

Father La Rocca’s free expression rights highlights that

Court’s refusal to recognize the requirements of this Court

in the area of First Amendment freedoms.

4. Assistance or CounsEL, Farr Triat anp Dug Proc-

Ess: The unconstitutionality of the action taken below is

underscored by its effect on Cecelia Daniels’ right to as-

sistance of counsel and the concomitant rights to a fair

trial and due process of law. While its result is not the

outright denial to Ms. Daniels of the assistance of counsel

at trial, the decision below has forced the removal of the

counsel in whom Ms. Daniels has placed her confidence and

trust as the result of the attorney-client relationship that

was preexistent. Moreover, the decision now confronts

Ms. Daniels with the decision of foregoing her right to a

jury trial or proceeding without Father LaRocca. Such

a forced choice between constitutional guarantees is im-

permissible for the same reason that it was impermissible

to abrogate Father La Rocca’s constitutional rights. This

record is devoid of any showing by the state that such a

result is mandated by a compelling state interest.

Conclusion

For the foregoing reasons, a writ of certiorari should

issue to review the judgment of the New York Court of

Appeals.

Respectfully submitted,

Wituiam GALLAGHER

Wituiam E. HeELLEeRsTEIN

Tue Lecat Aw Society

15 Park Row

New York, New York 10038

Ernest J. Berro.orri

Micuaeit T. SuLLIVAN

BarteL Encetman & Fishman

One Dag Hammarskjold Plaza

New York, New York 10017

STEPHEN R. MacDona.p

Room 4500

140 Broadway

New York, New York 10005

Attorneys for Petitioner

—— ee ec tccetnn ahaa» eatiht Van

A P P EN D

C cE §

Appendix A

Opinion of the New York Court of Appeals

Chief Judge Breiret. This is a proceeding brought to

prohibit respondent, a Judge in the Criminal Court, from

requiring petitioner, a Roman Catholic priest, to change his

clerical garb before appearing as defense counsel in a crim-

inal jury trial. Special Term granted the petition and

prohibited the Presiding Judge from enforcing his order.

The Appellate Division reversed, one Justice dissenting,

and dismissed the proceeding on the merits. Petitioner

appeals.

The preliminary question is whether prohibition under

CPLR article 78 lies. If it does, the issue becomes whether

the court’s direction violated petitioner’s right to free ex-

ercise of religion.

There should be an affirmance.

Prohibition is available to restrain an inferior court or

Judge from exceeding its or his powers in a proceeding

over which the court has jurisdiction. While a court has

authority to regulate the conduct and appearance of counsel

in proceedings before it, that authority is not unlimited.

In exercising the power to regulate conduct and appear-

ance, a court may not violate the constitutional right of

counsel to free exercise of religion. Petitioner has pre-

sented a substantial claim that the Judge in the Criminal

Court has exceeded his powers. Thus, petitioner should be

able, in the first instance, to seek redress by prohibition.

The free exercise of religion is a highly protected inter-

est but is not absolute. The incidental burden on peti-

tioner’s freedom to exercise his religion must be balanced

against the State’s paramount duty to insure a fair trial in

[A 1]

A 2

Opinion of the New York Court of Appeals

a criminal action for both defendant and the People. In

striking the balance it is concluded that the performance

of the State’s paramount duty to insure a fair trial may

not be substantially jeopardized because of petitioner’s

right, however significant, to free exercise of his religion.

Petitioner has been an ordained Roman Catholic priest

for 25 years. Admitted to the Bar in 1973, petitioner is a

lawyer employed for his second year by the Legal Aid

Society. He was assigned by the society to represent an

indigent defendant in a criminal jury trial in the case of

the People against Cecelia Daniels in the Criminal Court of

the City of New York. Defendant Daniels was charged

with assault on her child’s school teacher and is free on

parole.

On January 7, 1974, when petitioner appeared for trial,

the trial prosecutor objected to proceeding while petitioner

was dressed in clerical garb. The objection was based upon

a concern that petitioner’s clerical costume might influence

even one juror, and perhaps prejudice a juror for or against

the defendant. Petitioner protested; he stated that he had

always worn clerical garb at law school, at his appearances

before the Committee on Character and Fitness, at his

admission to the Bar, and at all previous court appearances.

He acknowledged, however, that he had never before repre-

sented a client at a jury trial. Petitioner also stated that

he had been ‘‘designated’’ by his bishop to appear in court

as a Catholic priest wearing his clerical garb. In opposing

the trial assistant’s objection, petitioner argued that a di-

rected removal of his clerical garb by the court would vio-

an ss —— re ee

Meter nrc is iter. aes SR els

A 3

Opinion of the New York Court of Appeals

late his client’s right to be represented by counsel of her

own choice, and would also violate his right to free exercise

of religion.

After considerable colloquy, the court directed that,

unless petitioner were to remove his clerical collar, he

would not be permitted to continue as defense counsel. The

court’s directive was grounded in its expressed concern

that members of the jury might be prejudiced by the ap-

pearance of petitioner in his clerical costume, and therefore

a fair trial could not be assured. Petitioner refused to

remove his clerical collar and instituted the present pro-

ceeding. The trial in the criminal action, although not

stayed, has never taken place. In his petition, petitioner

contended only that the judicial direction to remove his

clerical collar denied him his constitutional right to free

exercise of religion.

se s e

The ‘‘ancient and just’’ writ of prohibition is rooted

deep in the common law. Originally used by the English

king to curb the powers of ecclesiastical courts, prohibition

has evolved into a basic protection for the individual in his

relations with the State (see Appo v People, 20 NY 531,

541-542; Wolfram, The ‘‘ Ancient and Just’’ Writ of Pro-

hibition in New York, 52 Col L Rev 334, 338-353; Third

Annual Report of N. Y. Judicial Council, 1937, p 107 et

seq.; see, also, 23 Carmody-Wait, 2d New York Practice

$145 :216, p 792).

It is well settled, and has been restated many times,

that prohibition is available both to restrain an unwar-

ranted assumption of jurisdiction and to prevent a court

from exceeding its authorized powers in a proceeding over

Opinion of the New York Court of Appeals

which it has jurisdiction (see, e.g. CPLR 7803, subd 2;

Matter of Nigrone v Murtagh, 36 NY2d 421, 423-424; Mat-

ter of State of New York v King, 36 NY2d 59, 62; Matter

of Roberts v County Ct. of Wyoming County, 34 NY2d

246, 248; Matter of Proskin v County Ct. of Albany Coun-

ty, 30 NY2d 15, 18; Matter of Lee v County Ct. of Erie

County, 27 NY2d 432, 436-437; Matter of Hogan v Culkin,

18 NY2d 330, 336; Appo v People, 20 NY 531, 541, supra).

The extraordinary remedy of prohibition is never avail-

able merely to correct or prevent trial errors of substan-

tive law or procedure, however grievous (see, e.g., Matter

of State of New York v King, supra, at p 62; see generally,

23 Carmody-Wait, 2d, New York Practice, op. cit.,

$145 :232, p 831 et seq.). The orderly administration of

justice requires that correction of litigation errors merely

be left to the ordinary channels of appeal or review. Other-

wise one would erect an additional avenue of judicial scru-

tiny in a collateral proceeding and thus frustrate the stat-

utory or even constitutional limits on review (see, e.g.,

Matter of State of New York v King, supra, at pp 63-64).

If, however, a court acts without jurisdiction, or acts or

threatens to act in excess of its powers, other principles

are applicable. Prohibition is not mandatory, but may

issue in the sound discretion of the court (see, e.g., Matter

of Hogan v Court of Gen. Sessions of County of N.Y., 296

NY 1, 8; Matter of Culver Contr. Corp. v Humphrey, 268

NY 26, 39). In exercising this discretion, a number of

factors should be considered.

The gravity of the harm which would be caused by an

excess of power is an important factor to be weighed (see

i ee a ee ee ne ie ee. see nd -

oe etn lw eam wk Callie

Opinion of the New York Court of Appeals

Matter of Culver Contr. Corp. v Humphrey, 268 NY 26, 40,

supra; see, also, 23 Carmody-Wait, 2d New York Practice,

op. cit., §145:216, pp 793-794). Also important, but not

controlling, is whether the excess of power can be ade-

quately corrected on appeal or by other ordinary proceed-

ings at law or in equity (see, e.g., Matter of State of New

York v King, 36 NY2d 59, 62, supra; Matter of Roberts v

County Ct. of Wyoming County, 34 NY2d 246, 249, supra).

If an adequate remedy is available, the burdening of

judicial process with collateral proceedings, interruptive

of the orderly administration of justice, would be unjusti-

fied. If, however, appeal or other proceedings would be

inadequate to prevent the harm, and prohibition would

furnish a more complete and efficacious remedy, it may be

used even though other methods of redress are technically

available (see, e.g., Matter of Lee v County Ct. of Erie

County, 27 NY2d 432, 437, supra; Matter of Culver Contr.

Corp. v Humphrey, 268 NY2d 26, 40, supra). For example,

to force a person, faced with a court acting or threatening

to act without jurisdiction, or in excess of its powers, to

proceed in contempt, and to remain confined until ‘‘ulti-

mate justice’’ is obtained upon appeal in habeas corpus

proceedings, would be to undermine the very reason for

the remedy (see People ex rel. Livingston v Wyatt, 186

NY 383, 396 [E. T. Barruerr, J., dissenting], contra, p 394;

see, generally, Wolfram, 52 Col L Rev 334, op. cit., pp

342-344).

On this analysis, it is crucial to distinguish between an

error in procedure or substantive law during a litigation

and the arrogation of power which is subject to correction

A 6

Opinion of the New York Court of Appeals

by prohibition. Thus, even constitutional issues involving

errors of substantive or procedural law are not cognizable

by way of prohibition (see, e.g., Matter of Blake v Hogan,

25 NY2d 747, 748; Matter of Watts v Supreme Ct. of Tioga

County, 36 AD2d 17, 18, mot for lv to app den 28 NY2d

714). If, however, a court acts without jurisdiction, or

acts or threatens to act in excess of its powers, and it af-

firmatively appears that this will be done in violation of a

person’s, even a party’s, rights, but especially constitu-

tional rights, prohibition will lie to restrain the excess

of power (see Matter of Lee v County Ct. of Erie County,

27 NY2d 432, 437-438, supra; Matter of Kraemer v County

Ct. of Suffolk County, 6 NY2d 363, 365; Matter of Abraham

v Justices of Supreme Ct. of N. Y. County, 37 NY2d 560;

Matter of Scott v McCaffrey, 12 Mise 2d 671, 674).

True, there is no sharp line between a court acting in

error under substantive or wrocedural law and a court act-

ing in excess of its powers, if only because every act with-

out jurisdiction or in excess of its powers in a proceeding

over which it has jurisdiction of necessity involves an

‘‘error of law’’. But the absence of bright lines of demarca-

tion in the law is not unusual; man’s language and ca-

pacity to conceptualize is not perfect. The fact is that in

extreme enough cases the distinction is easily apparent.

At one extreme, a trivial error in excess of jurisdiction may

be just that, trivial, and hardly worthy of treatment as an

excess of power. On the other hand, at the other extreme,

a gross abuse of power on its face and in effect may be in

reality so serious an excess of power incontrovertibly jus-

tifying and requiring summary correction. A good example

of the last was the gross, unprecedented, and even suspect

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Opinion of the New York Court of Appeals

as to motivation, direction to disclose an entire transcript

of a Grand Jury investigation in a case involving limited

issues (see Matter of Proskin v County Ct. of Albany

County, 30 NY2d 15, 18-19, supra). The law generally

and the extraordinary remedy of prohibition has not devel-

oped as a linguistic exercise but as a response in language

and concept to the recognized needs and accommodations in

a society governed by the rule of law. There is a larger

logic than that delineated by etymology. To eliminate or

minimize the concept of an excess of power, on presumed

verbalistic grounds, would undermine a common-law prin-

ciple of ancient standing and the continuous statutory

statement of that principle (see Appo v People, 20 NY 531,

541, supra; CPLR 7803, subd 2; Civ Prac Act, $1296,

subd 2).

Petitioner does not, as he could not, dispute the power

of the court to regulate generally counsel’s conduct and

appearance (see Matter of Peck v Stone, 32 AD2d 506, 508;

People v. Rainey, 224 Cal App 2d 93, 95-98; ef. People ex rel.

Karlin v Culkin, 248 NY 465, 473). Instead, petitioner ar-

gues that the trial court exceeded its powers in directing

removal of his clerical garb, a direction allegedly violative

of petitioner’s right to free exercise of religion. He offers

a ‘‘substantial’’ argument in support of his contentions.

True, upon reaching the merits, the court may decide the

issue adversely to petitioner. But this would not foreclose

the remedy. When a petitioner, whether party or not, but

especially where one is not a party, presents an arguable,

substantial, and novel claim that a court has exceeded its

powers because of a collision of unquestioned constitutional

A 8

Opinion of the New York Court of Appeals

principles, he may, in the first instance, seek redress by

prohibition.

Thus, petitioner seeks to vindicate his right to free

exercise of religion, certainly a preferred right included

among the great human rights in a free and open society

(see Matter of Brown v McGinnis, 10 NY2d 531, 536;

US Const, lst Amdt; NY Const, art I,§ 3). With respect to

such a preferred right, and its safeguarding, prohibition

1s a ‘*more complete and efficacious remedy’’ to redress the

alleged excess of power, if that it were. Petitioner should

not be compelled to test the alleged excess of power in such

a significant area of constitutional right by proceeding in

contempt of court and habeas corpus proceedings. Nor is

appeal in the criminal action an adequate remedy since

his client, the defendant, might be acquitted or a conviction

reversed on another ground, or she might refuse to take

an appeal. Moreover, on a conviction there would be an

additional obstacle to establish, namely, that the ‘‘error’”’

was material, a condition difficult to surmount in the par-

ticular criminal action since as an indigent with assigned

counsel she had a right to counsel but lacked the right to

stipulate who that counsel should be (see People v Brabson,

9 NY2d 173, 180-181). Thus, prohibition should be avail-

able in the discretion of the court to test whether petitioner

is entitled to restraint of an inferior court from directing

removal of petitioner’s clerical garb.

Having determined that the remedy of prohibition is

appropriate, the merits of the application may be ad-

dressed. The appearance of a lawyer in court is the occa-

sion for him to discharge a particular funetion in the

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Opinion of the New York Court of Appeals

administration of justice. His function is not to displa »

his client but to serve as his agent in the litigation. It

is rarely good advocacy and never quite ethical for the

lawyer to substitute himself for the client before jury or

court. That this may happen because of the limitations of

human nature does not undermine the imperative of the

rule. To the extent to which it is possible, the imp»*per

displacement of client by attorney should be minimized

by elimination of egregious assumed or real idiosyncrasies

of dress, appearance, status, or conduct. The purpose is, at

least as to outward appearances, to place counsel in their

proper relation toward their clients.

‘‘A Judge must have and does possess the power to

enforce order and control behavior in the courtroom; and,

as an officer of the court, an attorney is subject to the con-

trol and direction of the Judge’’ (Matter of Peck v Stone,

32 AD2d 506, 508, supra; see People ex rel. Karlin v Culkm,

248 NY 465, 470-471, supra; Code of Judicial Conduct,

Canon 3, subd A, par [2]). Thus, the lawyer is subject to

the regulation of the Judge in matters of attire when that

regulation is reasonably related to the preservation of

order and decorum in the courtroom, the protection of the

rights of parties and witnesses, and generally to the fur-

therance of the administration of justice (see People v

Rainey, 224 Cal App 2d 93, 95-98, supra; cf. People v

Jelke, 308 NY 56, 63).

Primary, of course, in a criminal action, is the right of

both the defendant and the People to a fair and impartial

trial. Indeed, a fair trial is a paramount constitutional

condition in any judicial proceeding; it is the foundation

of a criminal trial, if justice be its essence.

Freedom of exercise of religion is not an absolute,

albeit a preferred right (Matter of Brown v McGinnis, 10

A 10

Opinion of the New York Court of Appeals

NY2d 531, 536, supra; see NY Const, art I, §3). While

freedom to believe is absolute, freedom to act is not. Reli-

gious practices are subject to regulation for the protection

of society (see Matter of Brown v McGinnis, supra, at

p 536).

The Supreme Court cases construing the freedom of

exercise clause are not particularly helpful. In Sherbert

v Verner (374 US 398, 403) the court stated that an in-

cidental burden on the right to free exercise of religion

may be justified by a ‘‘ ‘compelling state interest in the

regulation of a subject within the State’s constitutional

power to regulate’ ’’ (citing NAACP v Button, 371 US 415,

438). In some of the cases, religious practices posed a

substantial threat to public safety, peace or order (see, e.g.,

Cleveland v United States, 329 US 14, 19; Prince v Mas-

sachusetts, 321 US 158, 166-167 ; cf. People v Sandstrom, 279

NY 523, 530). In others, religious practices conflicted with

interests deemed not of paramount importance to the State

(see, e.g., Wisconsin v Yoder, 406 US 205, 228-229; Sherbert

v Verner, 374 US 395, 406-407, supra). In the instant case,

however, the particular limited religious practice has been

found to conflict with the State’s paramount duty to insure

a fair and impartial trial. The respective interests must

be balanced to determine whether the incidental burdening

is justified (see People v Woodruff, 26 AD2d 236, 238, affd

21 NY2d 848).

A clergyman is accorded high status by most members

of our society. Whatever the character of the man or woman

who wears the cloth, the cleric is accorded a measure of

respect and trust unlike that which is given to those of

other vocations. Consequently, it is understandable, but

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Opinion of the New York Court of Appeals

not condonable, that a juror might view differently state-

ments made by a member of the clergy than those made

by others, and might ascribe a greater measure of veracity

and personal commitment to the rightness of his client’s

cause.

On the other side of the issue it is most unfortunate,

but yet undeniable, that there exist religious prejudices.

These prejudices, often insidious and usually denied, might

spill over from a laweyr-cleric of whatever faith to the

client. Although petitioner’s client said she wished him

to remain as her attorney despite this possibility, it is not

the defendant in a criminal action but the court which must

insure a fair trial. So fundamental is the guaranty of a

fair trial that even in the absence of objection or exception

by defendant or counsel an unfair trial must result in a

reversal of a conviction (see People v McLucas, 15 NY2d

167, 172; People v Bradner, 107 NY 1, 45).

The trial court in directing change of petitioner’s garb

if he persisted in trying the case before a jury, acted to

preserve the right of both the defendant and the People

to a fair trial. In so doing, the court of necessity limited

defense counsel’s right to free exercise of religion in that

he was compelled to remove the symbol of his religious

calling, a requirement of his calling which is not uncon-

ditional or beyond dispensation. The risk that a fair trial

could not be had outweighed this incidental limitation.

The problem presented by the case is not facilitated

in any direction by petitioner’s recital that he was ‘‘desig-

nated’’ by his bishop to wear his clerical garb as a lawyer.

While this designation or direction is uncontroverted, the

record does not establish in any degree why this designation

A 12

Opinion of the New York Court of Appeals

or direction was made, or whether it was absolute or condi-

tional. Nor does petitioner now make much of the point,

assuming that he still relies on it, which one should assume.

But assuming that that is so may not change the result in

the case, once it is determined reasonably that the para-

mount judicial duty to assure a fair trial is involved.

Nor does this appeal raise the problem of nonclerical

religious practices, symbols, and expressions which might

be presented, or which might invoke absolutes of religious

doctrine, in the tableau of a judicial trial. Although even

then egregious circumstances might be presented which

arguably and reasonably could impair the provision for a

fair trial. But no such question is now involved, such as

the propriety of head coverings, nonclerical religious garb,

common religious symbols worn by devotees of a faith,

or abstentions from oath taking or other incidents of a

judicial trial not involving the displacement of a client,

whether it be the People or the defendant in a criminal

jury trial, by a member of the clergy of whatever faith who

also doubles as a lawyer.

Accordingly, the order of the Appellate Division should

be affirmed, without costs.

GaBRIELLI, J. (dissenting). I vote to reverse, on the

well-reasoned dissenting opinion by Mr. Justice J. Irwin

SuHaprro at the Appellate Division.

Judges Jasen, Jones, WACHTLER, Fucusserc and CooxeE

concur with Chief Judge BrerreL; Judge Gasrie.ii dissents

and votes to reverse in a memorandum.

Order affirmed.

Appendix B

Opinion of the Appellate Division, Second Department

Appga from a judgment of the Supreme Court (Guy J.

Maneano, J.), entered April 9, 1974 in Kings County, in a

proceeding pursuant to CPLR article 78, which granted the

petition to prohibit the appellant from requiring the peti-

tioner to remove his clerical collar while acting as defense

counsel in a certain criminal case.

Louis J. Lefkowitz, Attorney-General (Robert S. Ham-

mer and Samuel A. Hirshowitz of counsel), for appellant.

William Gallagher and Mario Matthew Cuomo (Eric A.

Seiff, Pierce Gerety, Jr., and John E. H. Stackhouse of

counsel), for respondent.

Aaron Nussbaum for Kings County Criminal Bar Asso-

ciation, Inc., amicus curiae.

Ernest J. Bertolotti (Michael T. Sullivan, John E. Pear-

son, Michael S. O’Rourke, Scott E. Mollen and Martin J.

Kilkeary of counsel), for Ad Hoc Committee for the De-

fense of Clerical Rights, amicus curiae.

Hopkins, Acting P.J. The petitioner has been an or-

dained Roman Catholic priest for 25 years. He was ad-

mitted to the Bar in 1973. He is employed as an attorney

by the Legal Aid Society and was assigned to represent

Cecelia Daniels, a defendant under criminal charges in the

Criminal Court of the City of New York. He appeared

before the court wearing his clerical collar, prepared to

try the case before a jury on behalf of his client. The

Assistant District Attorney objected to the appearance

by the petitioner in the garb of a Roman Catholic priest.

After considerable colloquy, during which the petitioner

[B11]

B 2

Opinion of the Appellate Division, Second Department

maintained both the right of the defendant to be repre-

sented by him in his clerical habit and his right to so ap-

pear, the trial court directed him to remove his clerical

collar before proceeding further in the trial.

The court then adjourned the case in order that its

ruling might be reviewed. The petitioner thereafter

brought this CPLR article 78 proceeeding in the nature of

prohibition to restrain the Criminal Court from preventing

him from trying the case before the jury wearing a clerical

collar. The Criminal Term of the Supreme Court' has

granted the petitioner’s application and has prohibited the

Criminal Court from enforcing its order (La Rocca v Lane,

77 Mise 2d 123) We reverse and dismiss the proceeding.

The Criminal Court did not act improvidently in directing

the petitioner not to appear in a clerical collar and no con-

stitutional rights of the petitioner or his client were vio-

lated by the direction.

The Criminal Court, in making its direction, was mo-

tivated by its concern that the members of the jury might

be prejudiced by the appearance of the petitioner in his

clerical garb and that, accordingly, a fair trial could not

be conducted. The Criminal Term, on the other hand,

found that no bias might be presumed, that by the voir dire

the presence of bias might be detected and eradicated and

that the defendant in the criminal case is entitled to the

assistance of counsel of her own choice. These conflicting

views, together with the constitutional right under the First

Amendment raised by the petitioner, compel us to weigh

issues of great importance within our system of justice.

1. This proceeding was determined at Criminal Term, although

proceedings pursuant to CPLR (art. 78) are returnable at Special

Term.

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Opinion of the Appellate Division, Second Department

The issues, as we see them, are threefold: (1) the right

of the defendant in a criminal case to be represented by

counsel attired in priestly garb, (2) the right of the peti-

tioner under the First Amendment to appear in court as

an attorney so attired before a jury, and (3) the power of

the court to regulate the dress of an attorney.

I. THE RIGHT OF THE DEFENDANT

_ We first note that the defendant in the criminal case

is represented by the Legal Aid Society, not by the peti-

tioner. The petitioner, as an attorney employed by the

Legal Aid Society, was assigned by it to represent the de-

fendant. The defendant, as an indigent, was entitled to

the assistance of counsel (Gideon v Wainwright, 372 US

335), even though the crime charged was a misdemeanor

(County Law, §722-a). The right to counsel is not absolute

(People v Brabson, 9 NY2d 173, 180) ; thus, the defendant

could not force the court to assign particular counsel, even

within the Legal Aid Society’s office (People v Howard, 150

Cal App 2d 428; People v Coz, 22 Ill 2d 534, cert den 374

US 855; ef. State v Rush, 46 NJ 399; People v Norman,

252 Cal App 2d 381, cert den 391 US 923; Commonwealth

v Johnson, 428 Pa 210; Baker v People, 299 F Supp 1265).

The court’s duty is simply to select competent counsel

within the provisions of the statute (County Law, §722;

see 21 Am Jur 2d, Criminal Law, §319).

The defendant’s constitutional right to assistance of

counsel is satisfied when he is represented by competent

counsel. His right does not extend to representation by the

petitioner, whether in clerical garb or not. In the event,

B 4

Opinion of the Appellate Division, Second Department

then, that the petitioner was compelled for reasons

grounded on religious belief or for other reasons to request

to be relieved of his assignment, the defendant could not

on account of her preference for the petitioner require the

court to continue his representation. Indeed, in the con-

text of this case, the Legal Aid Society would simply assign

another attorney on its staff to the defendant.

There is, in brief, no infringement of the defendant’s

right to counsel by the action of the Criminal Court.

II. THE PETITIONER’S RIGHTS UNDER THE

FIRST AMENDMENT

The free exercise of religious beliefs has been sur-

rounded by special protection under the First Amendment.

Though it is in many ways a kind of personal expression,

the intrusion into which by State action is forbidden, the

right of individual worship is not altogether beyond regula-

tion by the State. The freedom to practice one’s religion

does not, for instance, deprive the State from comp.!ling

the individual’s testimony before the grand jury (People

v Woodruff, 26 AD2d 236, affd 21 NY2d 848). The State

Constitution, indeed, states that ‘‘the liberty of conscience

hereby secured shall not be so construed as to * * * justify

practices inconsistent with the peace or safety of this state’’

(NY Const art I, §3).

Of course, the First Amendment takes precedence over

our State Constitution (Cantwell v Connecticut, 310 US

296). Hence, it is the Federal standard to which we must

look in determining whether the petitioner’s right of reli-

gious freedom has been violated by the order of the Crim-

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B 5

Opinion of the Appellate Division, Second Department

inal Court. The Federal standard requires us to find that

any incidental burden on the petitioner’s exercise of his

religion must be justified by a compelling State interest

in the regulation of a subject within the State’s power to

regulate (Sherbert v Verner, 374 US 398, 403; Wisconsin v

Yoder, 406 US 205, 220). A balancing of the particular

values becomes, therefore, the mechanism whereby the

constitutionality of the regulation is decided. In striking

the balance, it has been suggested by a leading commenta-

tor that three elements are involved—first, the importance

of the secular value underlying the regulation; second, the

degree of necessity that the regulation bears to that value;

and third, the impact that an exemption for religious

reasons would have on the program carrying out the reg-

ulation (Giannella, Religious Liberty, Nonestablishment,

and Doctrinal Development, Part 1., The Religious Liberty

Guarantee, 80 Harv L Rev 1381, 1390). To this should

be added the admonition spoken in the Supreme Court deci-

sion upholding laws abolishing polygamy that, although

laws ‘‘eannot interfere with mere religious belief and

opinions, they may with practices’’ (Reynolds v United

States, 98 US 145, 166).

It should be noted that the »etitioner claims that he is

under instructions from his Bishop to wear his collar and

that he fulfills his right of religious worship by doing so in

the performance of his duties as an attorney. On the other

hand, it is beyond question that the petitioner’s dress is

regulated by the court only when he is performing his

duties as an attorney in a trial before a jury. The court

did not undertake to prohibit him from wearing the clerical

B 6

Opinion of the Appellate Division, Second Department

collar as a spectator, as a witness, or as a party. Undoubt-

edly, the relationship between the court and an attorney

is more intimate and more subject to regulation than is

the status of a spectator, witness, or party, although cer-

tainly there is residual power in the court even to regulate

that status (American Bar Association Project on Min-

imum Standards for Criminal Justice, The Function of

the Trial Judge, $41.1, 5.3, 6.3, 6.8, 6.10 [Tentative Draft]).

We turn, then, to a consideration of the secular value

involve. There is hardly a stronger interest within the

governmenial structure than the preservation of the right

to a fair trial, both by the accused and by the prosecution.

The Trial Judge’s function largely rests in his duty to

insure that this right is enforced and maintained. Even

with respect to the constitutional right of the free press, the

right of the Trial Judge to control the proceedings within

his courtroom may be pre-eminent (A.B.A. Project on Min-

imum Standards for Criminal Justice, Fair Trial and Free

Press, §3.5, subd. [a] [Tentative Draft]; ef. Sheppard v

Maxwell, 384 US 333; People v Jelke, 308 NY 56).

Concerning the degree of necessity which the regulation

bears toward the value, it is manifest that a fair trial is

linked closely to the conduct of the attorneys appearing

in the trial. An attorney is subject to the reasonable orders

of the court to preserve a fair trial (Sacher v United States,

343 US 1; A.B.A. Project on Minimum Standards for

Criminal Justice, The Function of the Trial Judge, §6.5

(Tentative Draft], The Prosecution Function, §5.2 [Ap-

proved Draft] The Defense Function, §7.1 [Approved

Draft]). Of course, the emphasis must be placed on the

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Opinion of the Appellate Division, Second Department

reasonableness of the orders; an attorney should not be

fettered by directions which are arbitrary and bear no

relation to the objective of a fair trial. We think that this

requirement is answered by the rules which govern the

power of the court generally to maintain decorum and

fairness in a trial, to which we advert beyond.

Last, we consider what effect on a fair trial an exemption

from the regulation would have in the program carrying out

the regulation. There are few clergymen who practice law

generally. An exemption for the petitioner would affect

only the trials in which he appears. Nevertheless, he is a

staff member of the Legal Aid Society, which is regularly

engaged in the defense of persons charged with criminal

offenses. Moreover, the regulation has a minimal effect on

the petitioner’s conduct, for it is direeted against him only

when he tries cases before a jury* and requires him only to

doff his clerical collar. If, indeed, the court’s order is rea-

sonably aimed at attaining the value of a fair trial, an ex-

emption, even for one attorney, would be unwarranted,

since it would single out the petitioner for special favor.

On balance, then, we conclude that the petitioner’s right

to free exercise of religious belief is subject to reasonable

regulation when he appears as an attorney in court to try

a case before a jury. Other considerations support this

view. The petitioner’s right to practice as an attorney is

quite different from his right to officiate as a clergyman.

2. The petitioner contends that this establishes the lack of reason

for the regulation, since he may appear in nonjury cases or on other

occasions in court in his clerical attire. But this claim ignores the

difference between a jury trial and other court proceedings. It is

arguable that even in a nonjury case the petitioner should not wear

clerical garb (see discussion under “III” imfra), so that he is favored

by the regulation to this extent.

B 8

Opinion of the Appellate Division, Second Department

When he appears in court, he is not acting as a priest.

This does not mean that he gives up his religious beliefs

or his priestly duties when he acts as an attorney; it does

mean, however, that when he enters on secular pursuits he

is subject to reasonable regulations in the secular realm.

Any exemption at all in behalf of the petitioner would tend

to destroy a pattern of conduct common to all attorneys

(ef. Braunfeld v Brown, 366 US 599; United States v

Hudson, 431 F2d 468, cert den sub nom. Hudson v United

States, 400 US 1011).

In addition, there exists stronger grounds for regulating

action based on religious convictions than for regulating

mere inaction, as the Supreme Court observed in the Rey-

nolds case (Reynolds v United States, 98 US 145, 161,

supra). In Sherbert, for example, the regulation which

prevented the plaintiff from enjoying the benefit of un-

employment compensation because of her refusal to work

on Saturday (inaction) for religious principles was struck

down (Sherbert v Verner, 374 US 398, supra), and in Wis-

consm v Yoder (406 US 205, supra) it was the defendant’s

refusal to send his children to school beyond the eighth

grade which was attacked. Here, however, the petitioner is

seeking to engage in the active practice of the law, and his

refusal to adhere to the direction of the court falls within

that affirmative endeavor.

In summary, we are of the opinion that the petitioner’s

rights under the First Amendment must yield to the rea-

sonable regulation of the court when he appears to try a

case before a jury. The question still remains, however,

whether the court’s order was reasonable under the cir-

cumstances. To this question we now address ourselves.

le al a alg, ly iii cts ae

Opinion of the Appellate Division, Second Department

Ill. THE POWER OF THE COURT TO REGULATE THE ATTIRE

OF AN ATTORNEY

The power of a court over proceedings in the courtroom

cannot be better expressed than by the language of Judge

(then Justice) Gasrretti in Matter of Peck v Stone (32

AD2d 506, 508): ‘‘A Judge must have and does possess the

power to enforce order and control behavior in the court-

room; and, as an officer of the court, an attorney is subject

to ie control and direction of the Judge (People ex rel.

Karlin v Culkin, 248 NY 465). The Judge is properly given

broad discretionary powers in the regulation of his court-

room; and so it should be. Furthermore, membership in the

Bar is a privilege burdened with conditions and while cer-

tain conditions of conduct may be imposed by a Judge, the

imposition of any such rule must bear a reasonable relation-

ship to contemporary conditions and ought to be imposed

only after there is a reasonable foundation for the need of

any rule.

‘In becoming an officer of the court, an attorney becomes

an instrument or agency to advance the ends of justice.

Thus it is required that there be co-operation with the court

whenever justice would be adversely affected if co-operation

were withheld. While such is the responsibility of an at-

torney and while it is the duty of a Judge to preserve order

and to insure that justice is not obstructed, it nonetheless

follows that any order or regulation imposed upon attor-

neys practicing before him must be based upon factual con-

ditions which leave no doubt that a continuance of the

proscribed conduct will result in a disrespect for order and

an impairment in the administration of justice. To this

B 10

Opinion of the Appellate Division, Second Department

end, therefore, any such order or rule must have a reason-

able or plausible basis, else this discretionary power is

subject to being declared arbitrarily exercised.’’

It is difficult to mark a definite line which will conclu-

sively fence off the discretionary power of a court to en-

force procedures to insure the integrity of the judicial

process. Each case turns on its own facts, but the main

purpose of the procedure must always be kept in mind—

the preservation of the judicial process. A judge must

observe the duties impressed upon him by the Code of

Judicial Conduct—one of whose canons dictates that he

shall ‘‘maintain order and decorum in proceedings before

him’’ (Code of Judicial Conduct, canon 3, subd A, par [2])

and another of which prescribes that he shall ‘diligently

discharge his administrative responsibilities’’ (Code of

Judicial Conduct, canon 3, subd B, par [1]). But there

underlies all of these prescriptions the fundamental prin-

ciple that the court shall conduct the business before it

fairly toward all.

The Criminal Court clearly had in mind, in issuing its

order, its desire to conduct a fair trial, stating that the

petitioner’s attire ‘‘would create a prejudice which would

prevent [it] from conducting a fair and impartial trial

before a jury.’’ The petitioner argues with considerable

force that the voir dire would effectively screen out of the

jury those veniremen who might thus be prejudiced, and

the Criminal Term, likewise, noted that the ‘‘ prejudices of

the past have been tempered by the involvement of our

clergymen in the now open citadels of public life’’ (La

Rocca v Lane, 77 Mise 2d 123, 128, supra).

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Opinion of the Appellate Division, Second Department

A judicious use of the voir dire might well lead to the

selection of a jury which would not be biased by the peti-

tioner’s appearance in clerical garb as attorney for the

defendant. There is, of course, no guarantee that such

would be the result. One study has come to the conclusion

that ‘‘voir dire is grossly ineffective as a screening mech-

anism’’ (Broeder, Voir Dire Examination: An Empirical

Study, 38 So Cal L Rev 503, 528). Jurors do not always

admit their preferences or their actions (cf. Broeder, Oc-

cupational Expertise and Bias as Affecting Juror Be-

havior: A Preliminary Look, 40 NYUL Rev 1079; Com-

ment, 70 Yale LJ, 763, 777).

It is unnecessary, however, to come to the extreme posi-

tion that the veniremen would conceal their prejudices and

thus frustrate the objective of a fair trial. A fair trial

encompasses more than a fair jury; it includes the atmos-

phere and the appearance of a fair trial. ‘‘It is not merely

of some importance but is of fundamental importance that

justice should not only be done, but should manifestly and

undoubtedly be seen to be done’’ (Rex v Sussex Justices

[1924], 1 KB 256, 259; cf. Cox v Louisiana, 379 US 559,

565). ‘‘Preserving and enhancing respect for law is of

surpassing importance in the administration of justice and

the standards emphasize the pervasive obligation of the

judge to maintain and safeguard both the reality and ap-

pearance of justice and respect for the law by his judicial

conduct and utterances’’ (A.B.A. Project on Minimum

Standards for Criminal Justice, The Function of the Trial

Judge, Introduction [Tentative Draft], p 4).

The petitioner’s attire at the trial would undoubtedly

affect the witnesses and the spectators. Witnesses for the

B 12

Opinion of the Appellate Division, Second Department

prosecution, especially the complaining witnesses, might

question whether the scales of justice had not been tipped

by the petitioner’s presence. The location of a clergyman

at the side of a complaining witness during the selection of

a jury has been said to be an error on the part of the court

(People v De More, 45 Mise 2d 872, 874). Dress is ‘‘a con-

tinuing visual communication to the jury’’ (People v Ro-

man, 35 NY2d 978, 979) and to others in the courtroom as

well, and it represents, when attached closely to a concept

or mode of life, a symbolism which draws an appropriate

response.’ For this reason, state the American Bar Asso-

ciation Standards for Criminal Justice, The Prosecution

Function [Approved Draft] (Commentary a. to $5.2, pp

113-114): ‘*Certain standards of dress, decorum, manners

and orderly procedure have evolved over the centuries to

enhance the authority of courts and the status and au-

thority of the advocates commensurate with their special

offices and powers. Such standards also serve to insure

calm, dispassionate consideration which places the focus

on the evidence rather than personalities.’”

’ The court’s power to regulate dress cannot be unreason-

ably exercised. Whether counsel preferred a bow-tie to a

3. In United States ex rel. Robson v. Malone (412 F2d 848,

850) the symbolic rising on the entrance of the Judge into the court-

room was said to be sufficiently related to the functioning of the court

as to constitute grounds for exclusion from the court of those spec-

tators who objected to rising.

4. The Standards refer to the garb worn by counsel in England

and Europe (id., p 114). In England the gowns and wigs worn by

barristers differ according to rank and gender (W. W. Boulton, Con-

duct and Etiquette at the Bar of England and Wales [4th ed., 1965],

pp 80-81). Though the origin of the use of these articles doubtless

stems from the common attire in the Middle Ages of student, clergy

and public officials, they now serve the purpose of putting opposing

counsel on a parity.

B 13

Opinion of the A»pellate Division, Second Department

four-in-hand, or a gray suit to a blue, in common experi-

ence should have no influence on the conduct of a trial.

There are idiosyncrasies which are beyond the power of a

court or even the strictures of a book of etiquette to cor-

rect. When, nonetheless, a discernible nexus between dress

of an attorney and the attainment of a fair trial becomes

evident in common experience, the court should take such

action as will be reasonably adapted to regulate the dress

of the attorney.

The court’s order in this case was reasonably adapted

to achieve the purpose of a fair trial. We take note that

the petitioner’s protest against the order was respectful

and obviously sincere. His opposition took the form of

vigorous argument before the court, couched in dignified

language, and in the institution of a proceeding to review

the court’s ruling **y other authority. Our concern, never-

theless, is not with what we consider to be the petitioner’s

motives, sincere as they are, but rather with the integrity

of the judicial process. That process must envelop not

simply the petitioner, but all who appear in court or come

to see the proceedings, and all must be aware of the court’s

interest in conducting a fair and impartial trial.

For these reasons, we reverse the judgment, on the law,

without costs, and dismiss the petition on the merits.

Snaptro, J. (dissenting). My sympathies are all with

the majority in the position that it takes in this case and

if I were free to disregard what I find to be the compelling

requirements of the United States and New York State

Constitutions, I would join in the opinion for reversal.

However, while I agree with the majority that no con-

B 14

Opinion of the Appellate Division, Second Department

stitutional right of the petitioner’s client was violated by

the direction of the Criminai Court that the petitioner

remove his clerical collar as a condition of trying the

charge against his client before the jury, I must reluctantly

dissent from its conclusion that the direction violated no

constitutional right of the petitioner.

Although the majority states that the petitioner claims

that he is under instructions from his Bishop to wear his

collar, and the record on appeal shows that he did make

such a claim in his oral argument in the Criminal Court,

his written papers in support of his article 78 application

do not rely upon any claimed instructions from his Bishop

but rest solely on the allegation that his wearing of the

clerical collar at any public function is a continual act

of worship and a symbol of his religious dedication and that

his compliance with the Criminal Court’s order to remove

his clerical collar would offend his religious conscience and

deny him his First Amendment right of free exercise of

religion. Thus, the major issue raised by this record is

whether the appellant’s order that the petitioner remove

his clerical collar as a condition of the court’s permitting

him to represent his client before a jury denies him his

constitutionally guaranteed First Amendment right of free

exercise of religion, which right is made applicable to the

States by the Fourteenth Amendment (Cantwell v Con-

necticut, 310 US 296, 309).

If the answer be in the affirmative, we are faced with

the consequent question of whether the limitations sought

to be imposed on this constitutional right can be justified

by a compelling State interest. Since the majority does not

B 15

Opinion of the Appellate Division, Second Department

dispute the fact that the applicable Federal standard in.

such a case is that any incidental burden on the petitioner’s

right to free exereise of religion ‘‘must be justified by a

compelling State interest in the regulation of a subject

within the State’s power to regulate’’, I shall not belabor

that point.

The core of the question here presented, it seems to me,

is answered in Sherbert v Verner ‘(374 US 398, 403, 404),

cited by the majority, where Mr. Justice Brennan, speak-

ing for the court, said, ‘‘Plainly enough, appellant’s con-

scientious objection to Saturday work constitutes no con-

duct prompted by religious principles of a kind within the

reach of state legislation. If, therefore, the decision of

the South Carolina Supreme Court is to withstand appel-

lant’s constitutional challenge, it must be either because

her disqualification as a beneficiary represents no infringe-

ment by the State of her constitutional rights of free ex-

ercise, or because any incidental burden on the free exercise

of appellant’s religion may be justified by a ‘compelling

state interest in the regulation of a subject within the

State’s constitutional power to regulate * * *’ NAACP v

Button, 371 US 415, 438. * * *

‘‘Here not only is it apparent that appellant’s declared

ineligibility for benefits derives solely from the practice of

her religion, but the pressure upon her to forego that prac-

tice is unmistakable. The ruling forces her to choose be-

tween following the precepts of her religion and forfeiting

benefits, on the one hand, and abandoning one of the pre-

cepts of her religion in order to accept work, on the other

hand. Governmental imposition of such a choice puts the

B 16

Opinion of the Appellate Division, Second Department

same kind of burden upon the free exercise of religion as

would a fine imposed against appellant for her Saturday

worship.’’

In Wisconsin v Yoder (406 US 205, 214) the court said:

‘‘It follows that in order for Wisconsin to compel school

attendance beyond the eighth grade against a claim that

such attendance interferes with the practice of a legitimate

religious belief, it must appear either that the State does

not deny the free exercise of religious belief by its require-

ment, or that there is a state interest of sufficient magnitude

to override the interest claiming protection under the Free

Exercise Clause.’’

So, too, in our case the State may not bar the petitioner

from, or limit his right to, the practice of the law by com-

pelling him, if he wishes to try a jury case, to abandon his

pattern of conduct, in the exercise of his religious beliefs,

of wearing his clerical collar whenever he appears in public.

‘Governmental imposition of such a choice’’ clearly would

put on his free exercise of religion ‘‘the same kind of

burden * * * as would a fine imposed against’’ him for his

mode of worship (see Sherbert v Verner, supra, p 404).

But the majority, after conceding that the Federal

standard requires it ‘‘to find that any incidental burden

on the petitioner’s exercise of religion must be justified

by a compelling State interest in the regulation of a subject

within the State’s power to regulate’’, goes on to conclude

that ‘‘a balancing of the particular values becomes, there-

fore, the mechanism whereby the constitutionality of the

regulation is decided’’ (emphasis supplied). But the effect

of the majority’s substitution of a balancing test for the

B 17

Opinion of the Appellate Division, Second Department

compelling-State-interest test is tantamount to excising the

latter standard. Under the compelling-State-interest test,

even if there is a possibility that the practice enjoined might

endanger the State’s right to a fair trial, ‘‘it would plainly

be incumbent upon the * * * [the appellant] to demonstrate

that no alternative forms of regulation would combat such

abuses without infringing First Amendment rights’’ (Sher-

bert v Verner, 374 US 398, 407, supra). Hence, when the

majority seeks to apply the compelling-State-interest test

by a process of balancing the competing values of the

State’s right to a fair trial against the petitioner’s right

to a free exercise of religion, without a prior determination

of whether the preservation of the former in the circum-

stances of this case requires that the First Amendment

right of the petitioner be infringed, it is, in fact, giving

mere lip service to the applicable compelling-State-interest

test established to make clear the preferred position of that

First Amendment right and is applying a completely differ-

ent test, in negation of the concededly applicable Federal

standard.

Only if the majority could find as a fact, as it does not,

that the record demonstrates the ineffectiveness of existing

alternative methods for avoiding any potential bias on

the part of members of the jury panel can the process of

balancing the competing values of the conflicting rights be

involved.

In this respect it must be noted that even though there

is a compelling State interest on the part of the State to

insure a fair trial in criminal cases both for the defense

and the prosecution, this, standing by itself, cannot suffice

to justify an infringement of the petitioner’s First Amend-

B 18

Opinion of the Appellate Division, Second Department

ment right to free exercise of religion. Thus, the court in

Sherbert said (supra, p 406): ‘‘It is basic that no showing

merely of a rational relationship to some colorable state

interest would suffice; in this highly sensitive constitutional

area, ‘{o]nly the gravest abuses, endangering paramount

interests, give occasion for permissible limitation,’ Thomas

v Collins, 323 US 516, 530.’ Here, as in Sherbert, ‘‘no

such abuse or danger has been advanced”’ (supra, p 407).

The appellant concedes that all that his order sought to

avoid was the possibility of bias. Neither the court which

issued the order to the petitioner to divest himself of his

clerical collar nor the prosecutor who objected to the peti-

tioner’s being allowed to wear his collar offered any proof

of any prejudicial impact on the jury. Rather, the appel-

lant argues only that his order was justified by the pos-

sibility that ‘‘the wearing of a clerical collar by a defense

counsel before a jury could be improperly construed by it

as an assertion of his client’s innocence’’; that what the

court was attempting to do ‘‘was to take a prophylactic

measure in order to insure that an extraneous element

which might cause bias, either for the prosecution or the

defense, would not reach the jurors’’ (emphasis supplied).

The appellant nowhere endeavors to show that the pos-

sibility which moved him to limit the petitioner’s free ex-

ercise of religion could not be adequately handled by the

use of appropriate questioning of members of the jury

panel in voir dire and by appropriate instructions to the

jury.

The law is clear that the mere opportunity for prejudice

raises no presumption that such prejudice exists (Holt v

United States, 218 US 245, 251). Here, no evidence was

B 19

Opinion of the Appellate Division, Second Department

offered to establish the existence of such bias, because the

prospective jurors had not even been questioned as io

whether they would be improperly influenced in determin-

ing the issues by reason of the petitioner’s garb. Hence,

Sheppard v Maxwell (384 US 333), cited by the majority,

which involved a trial where the hippodrome atmosphere

the trial court had permitted to develop had clearly re-

sulted in jury bias, is inapposite. Nor can any claim be

made that the petitioner’s clerical collar was in any way

inappropriate, unconventional, unsuitable, disturbing or

distracting in the courtroom. Hence, Matter of Peck v

Stone (32 AD2d 506) and People ex rel. Karlin v Culkin

(248 NY 465), both of which sustained a court’s power to

require attorneys to maintain an atmosphere comporting

with dignity, are also inapposite. I do not dispute the

power of a trial court to control the behavior of attorneys

before it to assure the observance of proper decorum. The

question here, however, is whether, in pursuit of this goal,

the court may use that power to deny an attorney his First

Amendment right to free exercise of religion because it

fears (without proof) that his exercise of that right might

possibly have the effect of appealing to the bias of some

of the jurors, even though there are other available means

of avoiding that possibility, means which would reach the

goal without infringing on the petitioner’s First Amend-

ment rights.

The majority quotes from Matter of Peck v Stone (32

AD2d 506, 508, supra) to the effect that ‘‘membership in

the Bar is a privilege burdened with conditions and while

certain conditions of conduct may be imposed by a Judge,

the imposition of any such rule must bear a reasonable

relationship to the contemporary conditions and ought to

B 20

Opinion of the Appellate Division, Second Department

be imposed only after there is a reasonable foundation for

the need of any rule.’’ The inference is that since member-

ship in the Bar is a privilege rather than a right, limita-

tions imposed on its exercise will be sustained if they have

a reasonable foundation, a test far less drastic than the

compelling-State-interest test. But in Sherbert v Verner

(supra, p 404) the Supreme Court of the United States,

dealing with the same contention, there made with respect

to the collection of unemployment insurance, said: ‘‘Nor

may the South Carolina court’s construction of the statute

be saved from constitutional infirmity on the ground that

unemployment compensation benefits are not appellant’s

‘right’ but merely a ‘privilege.’ It is too late in the day

to doubt that the liberties of religion and expression may

be infringed by the denial of or placing of conditions upon

a benefit or privilege.’’

While it is clear that an attorney may be required to

make certain concessions as a condition of receiving the

privilege of practicing law (see Matter of Peters, 250 NY

595; People ex rel. Karlin v Culkin, 248 NY 465, supra;

Matter of Goldstem, 220 App Div 107; Matter of New York

County Lawyers Assn. [Roel], 3 NY2d 224, app dsmd sub

nom. Roel v New York County Lawyers Assn., 355 US 604),

this cannot suffice to sustain a claim that a court may use

its supervising power over attorneys to infringe on their

constitutionally protected right of free exercise of religion

without establishing the existence of a compelling State

necessity for such action.

In a further effort to support their conclusion, the ma-

jority makes a de minimis argument. First it stresses

that this denial of the free exercise of religion will have

B 21

Opinion of the Appellate Division, Second Department

little effect generally, since ‘‘there are few clergymen who

practice law generally.’’ But the issue is not whether few

or many will suffer from a rule barring attorneys who are

clerics from wearing their clerical garb when appearing

for their clients before juries, but whether the rule has

denied this respondent his constitutionally guaranteed right

to free exercise of religion in the absence of the existence

of a compelling State interest warranting a denial of that

right. Secondly, the majority contends that the order at-

tacked by the petitioner ‘‘has a minimal effect on the peti-

tioner’s conduct, for it is directed against him only when

he tries cases before a jury and requires him only to doff

his clerical collar.’’ But the First Amendment forbids the

State not only ‘‘to condition the availability of benefits

{in this case the petitioner’s right to wear his clerical garb

whenever he appears in court as counsel for any party]

upon this * * * [the petitioner’s] willingness to violate a

cardinal principle of * * * [his] religious faith’’ because

it thereby ‘‘effectively penalizes the free exercise of * * *

[his] constitutional liberties’’ (Sherbert v Verner, 374

US 398, 406, supra), but it also denies to the State the right

to say what is a cardinal principle and what is a sub-

ordinate principle of the petitioner’s religous faith (see

Board of Educ. v Barnette, 219 US 624, 642).*

*In his opinion for the court in that case (p 642), Mr. Justice

JACKSON said, “If there is any fixed star in our constitutional con-

stellation, it is that no official, high or petty, can prescribe what shall

be orthodox in politics, nationalism, religion, or other matters of

pone or force citizens to confess by word or act their faith therein.”

If no official, including a Judge, may do so, he certainly is barred

from ruling as to what is a cardinal principle of a person’s religious

faith and what is a subordinate principle which may be infringed by

court order, without a previous valid finding that such infringement

is justified by a compelling State interest in the regulation of a sub-

ject within the State’s power to regulate.

B 22

Opinion of the Appellate Division, Second Department

In sum, the majority’s conclusion, that the petitioner’s

rights under the First Amendment must yield to the direc-

tions of the court that he not wear his clerical collar when

he appears before it to try a case before a jury, results

from the adoption of a balancing standard which departs

wholly from that which the majority concedes is the Fed-

eral standard required to be applied. I therefore respect-

fully dissent from the conclusion reached by the majority.

There is really no need, therefore, to discuss the final

portion of the majority’s opinion, which deals with the sub-

ordinate, and in my view irrelevant, question of whether the

court’s order was reasonable. A few words of comment on

the views the majority expressed may, however, not be

inappropriate. The majority concedes that ‘‘a judicious

use of the voir dire might well lead to the selection of a jury

which would not be biased by the petitioner’s appearance in

clerical garb as attorney for the defendant.’’ In seeking

to explain away this concession it belittles the effectiveness

of the voir dire as a screening mechanism. The majority

notes, without distinguishing the question of the effect of

clerical garb worn by an attorney from any other questions

probing for potential jurors’ prejudices on other matters,

that there is ‘‘no guarantee’’ that a voir dire would result

in a bias-free jury. Thus, implicit in the majority’s argu-

ment is a rejection of the entire process of voir dire, a step

which, I am sure, the majority does not call for or support.

MartvuscetLo and LatnHam, JJ., concur with Hopxrs,

Actine P.J.; SHaprro, J., dissents and votes to affirm the

judgment, with an opinion.

Judgment of the Supreme Court, Kings County, entered

April 24, 1974, reversed, on the law, without costs, and peti-

tion dismissed on the merits.

Appendix C

Opinion of Supreme Court, Kings County, Criminal Term

Guy Maneano, J. This is an article 78 proceeding to

review an order of a lower court Judge barring petitioner,

while wearing his clerical collar as an ordained Roman

Catholic priest, from representing a defendant in the selec-

tion of a jury and in the trial of a criminal proceeding. The

basis of the lower court order is that ‘‘there would be a sub-

stantial danger that jurors would draw impermissible infer-

ences in the defendant’s favor as to her character and verac-

ity’’; that ‘‘[w]hile it can be assumed that most jurors

would react favorably to petitioner if seen in a clerical col-

lar, there is always the possibility that some reactions might

be adverse’’ and that ‘‘long experience in the criminal jus-

tice system has established that irrationality and bigotry

cannot always be eliminated; [so] that some prospective

jurors * * * will fail to follow the court’s instructions.”’

Petitioner alleges that, in over 24 years since his ordina-

tion, he has always worn his clerical collar in his everyday

activities. He has appeared before the Character Commit-

tee, was sworn in as a member of the Bar, had tried nonjury

actions, all, while wearing his clerical collar. Petitioner

contends that the court’s barring him from representing

defendant in a criminal jury trial because of his clerical

collar deprives him of his basic constitutional privileges ;

the right of free exercise of religion, and the right to prac-

tice law.

The lower court’s order presents no complex issues of

prevention of free exercise of religion, or of favoring a reli-

gion, or of misconduct of an attorney in appearing at court

wearing distinctive, religious garb. The petitioner’s dress

is not claimed to be immodest, bizarre or an affront to the

dignity of the court, or an attempt to obtain an unfair ad-

[C1]

C 2

Opinion of Supreme Court, Kings County, Criminal Term

vantage in the selection of the jury (see Matter of Peck v.

Stone, 32 A D 2d 506). There is thus, but one fundamental

issue to be considered, namely: the authority of a presiding

Judge to determine, as a matter of law, that the outerwear

of an attorney, be it a clerical collar, skull cap, crucifix, star

of David, or other religious or societal emblem or medallion,

distinctive of his faith, or belief will so prejudice the state

of mind of a jury panel as is likely to preclude it from

rendering an impartial verdict.

Unfortunately, bias to a greater or lesser degree has

existed since the memory of man. Recognition of that fact

is found in the statutory safeguards of our judicial system.

But to assume from outward trappings or from eminence

of trial counsel, a bias that rebuts the presumption of a

prospective juror’s impartiality is to enter into the realm

of speculation that leads to the disqualification of entire

classes of people from jury service. It is a predetermina-

tion that a juror cannot lay aside his impression or opin-

ion and render a verdict based solely on the evidence

presented (see People v. Genovese, 10 N Y 2d 478). This

is no new concept being expounded by this court.

In Purple v. Horton (13 Wend. 9, 22) Chief Judge

Savace in 1834 speaking with prophetic vision, rhetorically

asked, ‘‘Is it true that persons belonging to the same soci-

ety * * * are ipso facto prejudiced in favor of every person

belonging to the same society * * * so that they cannot

decide a question of fact impartially between them and

other persons? Whatever may have been the state of soci-

ety in the days of Finch and of Blackstone, it is not so

now.”’

Closer to the instant case is Searle y. Roman Catholic

Bishop of Springfield (203 Mass. 493, 498) wherein a

C 3

Opinion of Supreme Court, Kings County, Criminal Term

Roman Catholic Bishop was sued for alleged conversion

of a wooden building, considered as personal property,

situated on the land of the Roman Catholic Bishop of

Springfield, a corporation holding title to the realty for

the Roman Catholic Church. The ruling of the lower court

that no person of the Roman Catholic faith should sit as a

juror in that case was reversed as ‘‘it could not successfully

be contended that holding the same religious belief as one

of the parties, or affiliation with him in the same church,

would disqualify a person from sitting as a juror in his

ease. The application of such a doctrine would be unjust

and impracticable.’’ To the same effect, see Barton v.

Erickson (14 Neb. 164 [1883] wherein the Lutheran Church

was involved, and United States v. Eagan (30 F. 608, 609

[1887]) wherein the court would not bar a juror ‘‘for the

fact that a juror belonged to one party, and was a strong

partisan * * * any more than a challenge on the ground that

he belonged to one church, and was a strong and bigoted

adherent of that church.’’ Exclusion of entire classes of

people from the jury on grounds of implied prejudice has

not been favored by our courts nor may ‘‘bias or lack of

impartiality of fairness * * * be inferred as a matter of

law.’’ (People v. Reilly, 71 Mise 2d 227, 229; Hildreth v.

City of Troy, 101 N. Y. 234; Fishbaugh v. Armour € Co.,

185 F. 2d 541, cert. den, 342 U. S. 914).

The strength and confidence of a citizenry to render an

impartial verdict is not weakened by the fact that a prospec-

tive juror had a prior opinion or an acquaintanceship with

or dislike of a trial attorney or been a client of either of

trial counsel. See People v. Wolter (203 N. Y. 484) and

People v. Genovese (10 N Y 2d 478, supra) which held that

the prior opinion of a juror was no bar; Garland v. United

C 4

Opinion of Supreme Court, Kings County, Criminal Term

States (182 F. 2d 801) where mere relationship to a prose-

euting attorney was no bar; Lane v. United States (321

F’, 2d 573, cert. den. 381 U. S. 920); Carpimtero v. United

States (398 F. 2d 488); Daut v. United States (405 F. 2d

312, cert. den. 402 U. S. 945) where being friends of or hav-

ing attended law school together with the prosecuting attor-

ney was no bar; People v. McQuade (110 N. Y. 284) where

being a former client to trial counsel was no bar; Bateman

v. United States (212 F. 2d 61) where the mere having of

some prejudice against one of the attorneys was no bar;

and United States v. Nadaline (471 F. 2d 340) where even

relationship to the foreman of the jury was no bar. As

was best summed up in Peerless Ins. Co. v. Schnauder (290

F’. 2d 607, 610, cert. den. 368 U. S. 830) the fact that the

three jurors involved were—‘‘one * * * because he had

known the attorney ‘many many years’. Another had

known him ‘for some time’ ‘just as a friend.’ The third

knew him ‘personally’ ‘quite a number of years’ having

‘met him at different occasions,’ and at ‘social functions’

* * * were [nevertheless] improperly excused.”’

The qualifications of prospective jurors and the grounds

for their discharge were fully set forth in chapter 6 of the

Code of Criminal Procedure and thereafter and as re-

enacted with greater safeguards in title J of the Criminal

Procedure Law. Both statutes provided, among other

qualifications ‘‘a state of mind that is likely to preclude

him from rendering an impartial verdict based upon the

evidence adduced at the time’’ (CPL 270.20, subd. 1, par.

[b], Code Crim. Pro., (376, subd. 2). The ‘‘ ‘state of

mind’ referred to * * * as a ground of challenge for

cause, means actual bias as contrasted to implied bias.’’

Opinion of Supreme Court, Kingz County, Criminal Term

(People v. Prior, 268 App. Div. 717, 721, affd. 294 N. Y. 405.)

‘‘Tmplied bias’’ under the old code was expressly limited by

definition to only those cases set forth in subdivisions 1

through 8 of section 377. In the new Criminal Procedure

Law the words ‘‘implied bias’’ were eliminated as the

trend and rationale of decisional law is that unless the

prospective juror lacks the specified statutory qualifications

(listed in CPL 270.20), he cannot be barred from service

upon speculative implications or assumptions of bias. Prej-

udice must, in fact, be shown and may not be presumed as

a matter of law, and must be established as a demonstrable

reality (Dennis v. United States, 339 U. S. 162; United

States v. Haynes, 398 F. 2d 980, cert. den. 393 U. S. 1120;

Hildreth v. City of Troy, 101 N. Y. 234, supra, and People

v. Reilly, 71 Mise 2d 227, supra).

If the outward clerical collar or other symbol denoting

religious faith and integrity be barred, then what test other

than voir dire may be applied to a trial counsel in a local

community who, despite the normal streetwear, is better

known to the residents of the community for his much

publicized meritorious work as a church leader and as a

man of honesty and integrity? If voir dire is employed in

one instance, it should be employed, with equal force, in

the other. Voir dire is the very cornerstone of jury selec-

tion. To deny voir dire, its full significance is to relegate

it to the category of a useless appendage, the coccyx of the

law jury qualification and selection. ‘‘The statute makes

elaborate provision for an impartial jury. * * * The law

prescribes the qualifications of jurors. The court cannot

add to or detract from them. It cannot itself select the

. jury, directly or indirectly. It cannot in its discretion, or

C 6

Opinion of Supreme Court, Kings County, Cris inal Term

capriciously, set aside jurors as incompetent, whom the

law declares are competent, and thus limit the selection of

the jury to jurors whose names may be left. If this is done

a legal right is violated, for which an appellate court will

give redress.’’ (Hildreth v. City of Troy, 101 N. Y. 234,

239). ‘*The voir dire * * * is an effective and practical

method of resolving on a factual basis the otherwise

debatable and speculative question whether a fair and im-

partial jury can be selected.’’ (United States v. Hoffa,

156 F. Supp. 495, 500 [S. D. N. Y.]; see, also, United

States v. Dellinger, 472 F. 2d 340, cert. den. 410 U. S. 970).

The concept of voir dire is so ingrained and protected in

our law that in State Bank of Beaver County v. Hollings-

head (82 Utah 416, 424-425) a trial court was not permitted

to ‘‘peremptorily or for cause or bias * * * challenge or

excuse a juror of its own motion. The right to challenge

rests with the parties * * *. The fact that a juror sustains

the relationship of a debtor or creditor, master or servant,

partner or united in business, with either party does not dis-

qualify the juror to act, but it gives the litigant the right to

challenge for cause.’’ (See, also, State v. Royster, 1818S. C.

269.)

As was stated by Mr. Justice Hotmegs in Holt v. United

States (218 U.S. 245, 251 [1910] ), ‘‘If the mere opportunity

for prejudice or corruption is to raise a presumption that

they exist, it will be hard to maintain jury trial under the

conditions of the present day.’’ (Emphasis added.)

This court, in the context of Irvin v. Dowd (366 U. S.

717) and Estes v. Texas (381 U.S. 532), has considered the

possible ‘‘psychological impact’? upon a juror viewing,

throughout the trial, an attorney garbed as a clergyman.

Opinion of Supreme Court, Kings County, Criminal Term

In the Irvin case there was a direct assault by the news

media upon the entire community of 30,000 inhabitants.

The extremes of repertorial conduct included interviewing

on public streets and broadcasting the opinions of the local

citizenry ‘‘as to petitioner’s guilt [and] even as to what

punishment he should receive’’ (p. 725); the continuous

‘‘barrage of newspaper headlines, articles, cartoons and

pictures * * * unleashed against [defendant] during the six

or seven months preceding his trial’’ (p. 725); ‘‘caused a

sustained excitement and fostered a strong prejudice’’ (p.

726) so that the ‘‘psychological impact’’ on the jurors

swayed the court in holding that the jurors’ declaration of

‘‘impartiality can be given little weight.’’ (p. 728).

In the Estes case, the court was presented with the ef-

fect of televising the entire trial and the ‘‘conscious and

unconscious effect * * * [it] may have on the juror’s judg-

ment.’’ (p. 545.) Little regard was given to the State’s

contention that the effects of televised proceedings ‘‘are

for psychologists because they are purely hypothetical.’’

(p. 550.) However, in denying the telecasting of the trial,

the court was not concerned with bias but with other factors

that prevented a fair trial, namely, the unusual publicity,

the aura of a cause célébre the impact on witnesses so that

‘some may be demoralized and frightened, some cocky and

given to overstatement; memories may falter, as with any-

one speaking publicly’’ (p. 547), distraction of jurors, and

the ultimate buildup of a prejudicial unfair trial.

No emotional assault is here made upon any prospective

juror. The presence of a clerical collar or a skull cap in

our social milieu, in our political and governmental func-

tions is no unusual phenomenon. The prejudices of the

Opinion of Supreme Court, Kings County, Criminal Term

past have been tempered by the involvement of our clergy-

men in the now open citadels of public life. We cannot

nor may we build bars on an evanescent presumption to

bias, presumably triggered by the sight of religious trap-

pings. We may not indulge in an assumption that every

jury panel will have members of a religious denomination

who will violate their religious teachings and favor peti-

tioner, despite the evidence presented. Nor, may we pre-

sume that every juror has an impenetrable wall of antag-

onism preventing fair consideration of the evidence as

elicited.

To adopt the view that every jury panel will be biased

as a matter of law is to condemn our entire society to

bigotry and to deny voir dire its function that has been

hallowed by precedent and statute.

Irrespective of the law in some foreign jurisdictions,

this court finds no statutes or court rules that restrict a

clergyman from being admitted to the Bar of the State of

New York, or place limitations on his usual attire. There

is no statutory presumption of prejudice against a re-

ligious collar, cloak, skull cap or other distinctive symbol

of a religion or people. Without such legislative or ju-

dicial proscriptions, this court must hold that the lower

court was without authority to bar petitioner from the trial

court while wearing his clerical collar and to bar a client

from retaining a clergyman, particularly ‘‘since this is

a criminal case, the constitutional right of the accused to

the assistance of counsel of his own choice reinforces this

principle.’’ (Lefton v. City of Hattiesburg, 333 F. 2d 280,

286.)

Accordingly, the petitioner’s application is in all re-

spects granted.

Appendix D

Petition Filed in Supreme Court, Kings County,

Seeking Prohibition

SUPREME COURT OF THE STATE OF NEW YORK

County or Kincs

(

FatruHer Vincent LaRocca, of Counsel to

Wim GatiacHer, Attorney-In-Charge,

The Legal Aid Society, Criminal Defense Division,

Petitioner,

For a Judgment Pursuant to CPLR Article 78

against

Hon. Morcan Lang, Judge of the Criminal Court

of the City of New York,

Respondent.

Fatuer Vincent LaRocca, being duly sworn, deposes

and says:

1. I am an attorney admitted to practice law in this

state in 1973. I am employed by the Legal Aid Society’s

Criminal Defense Division and am presently assigned to

the Society’s Brooklyn Criminal Court office.

2. I was assigned by Wru1am GaLiacHER, Attorney-in-

Charge of the Criminal Defense Division, to represent

[D1]

Petition Filed in Supreme Court, Kings County,

Seeking Prohibition

Cecelia Daniels, whose case was scheduled for trial on

January 7, 1974.

3. I am an ordained Roman Catholic priest and have

been so for over twenty-four years. Since my ordination,

I have regularly worn the clerical collar as part of my

everyday activities. I wore the collar during more than

thirteen years as a teacher; while preparing for a doctorate

in American history, and other advanced degrees; while

attending law school; when I appeared before the Charac-

ter and Fitness Committee; when I was admitted to the

bar; and at every court appearance I have made since that

time.

4. Even before jury selection began in the Daniels case,

respondent, Hon. Morgan Lane, the Judge of the New York

City Criminal Court presiding on the case, ordered me to

remove my clerical collar. I refused, and respondent there-

upon prohibited me from representing Ms. Daniels during

her scheduled trial by jury. (The transcript of that pro-

ceeding is appended hereto.) The case was adjourned to

January 24, 1974, and respondent said he would not ad-

journ the case further even if his ruling forbidding a

clerical collar were then being challenged in a higher court.

5. The wearing of the clerical collar at all public func-

tions is a continual act of worship and a symbol of religious

dedication. Removal of the clerical collar for an appear-

ance before the jury would offend my religious conscience.

Thus, respondent’s order to me to remove the clerical

D 3

Petition Filed in Supreme Court, Kings County,

Seeking Prohibition

collar denies me my First Amendment right of free exer-

cise of religion.

6. No previous application has been made in this or

any other court for the relief herein requested.

Wuererore, petitioner prays that the Court issue an

order prohibiting the respondent judge from requiring me

to elect between my right to the free exercise of my re-

ligion by wearing a clerical collar and my right as an

attorney to represent clients during trial by jury.

/s/ Reverenp Vincent R. LaRocca

Vincent LaRocca

Sworn to before me this

15th day of January, 1974

/s/ Rosert Hermann

Notary Public

Appendix E

Verified Answer to Petition Filed in Supreme Court,

Kings County, Seeking Prohibition

SUPREME COURT OF THE STATE OF NEW YORK

County or Kines

Index No. 860/1974

OO —

FatHer Vincent LaRocca, of Counsel to

Wuuiam GatiacHer, Attorney-In-Charge,

The Legal Aid Society, Criminal Defense Division,

Petitioner,

For a Judgment Pursuant to CPLR Article 78

against

Hon. Morcan Lane, Judge of the Criminal Court

of the City of New York,

Respondent.

Respondent, for his answer to the petition herein by his

attorney, Louis J. Lerxowrrz, Attorney General of the

State of New York, respectfully alleges:

1. Denies so much of paragraph ‘‘5’’ thereof as al-

leges that respondent’s direction to petitioner to remove

his clerical collar during jury cases denies petitioner’s

right of free exercise of religion pursuant to the First

Amendment.

(E 1]

Ee RR ee

E 2

Verified Answer to Petition Filed in Supreme Court,

Kings County, Seeking Prohibition

2. Denies knowledge or information sufficient to form

a belief as to each and every allegation contained in para-

graphs ‘‘3’’, ‘‘6’’ and so much of ‘‘5”’ thereof, not here-

tofore denied.

As and for a First, Separate and Complete Defense

3. That the determination sought to be reviewed and

annulled herein was within respondent’s jurisdiction; was

neither arbitrary, capricious, in violation of lawful pro-

cedure, affected by an error of law or an abuse of discre-

tion.

As and for a Second, Separate and Complete Defense

and by Way of Objection in Point of Law

4. The petition fails to state facts entitling petitioner

to the relief sought.

WHEREFORE, it is respectfully requested that the petition

be dismissed.

Louis J. Lerxow1tTz

Attorney General of the

State of New York

Attorney for Respondent

Office & P.O. Address

Two World Trade Center

New York, New York 10047

Tel. No.: 488-3394

a =

Appendix F

Affidavit of Morgan Lane, Judge of Criminal Court of

the City of New York, in Opposition to Petition

SUPREME COURT OF THE STATE OF NEW YORK

County or Kincs

FatHer Vincent LaRocca, of Counsel to

Wru1uM GatiacHer, Attorney-In-Charge,

The Legal Aid Society, Criminal Defense Division,

Petitioner,

For a Judgment Pursuant to CPLR Article 78

against

Hon. Morcan Lanz, Judge of the Criminal Court

of the City of New York,

Respondent.

Stare or New York )

) ss.:

County or Krnes )

Morean Lane, being duly sworn, deposes and says:

I am a Judge of the Civil Court of the City of New York,

assigned to sit in the Criminal Court of the City of New

York, County of Kings and the respondent herein. I have

personal knowledge of the facts of this proceeding and

make this affidavit in opposition to the petition herein.

(F 1]

F 2

Affidavit of Morgan Lane, Judge of Criminal Court of

the City of New York, in Opposition to Petition

Prior to ascending the bench, I spent twenty years in

private practice as a criminal defense attorney and four-

teen as an assistant district attorney, during the last five

of which I prosecuted homicide cases. In my nine years

of service on the bench I have sat largely in the Criminal

Court. I am therefore profoundly aware of the compelling

necessity for fairness and the appearance of fairness on

the part of the court and counsel for both sides in the trial

of criminal cases. This is particularly so in cases to be

tried before a jury. It was with this in mind that, upon

objection by tie Assistant District Attorney in charge of

the part, I directed the petitioner not to appear in a

clerical collar in the case of People v. Cecilia Daniels, Dkt.

+ K-324146, which was to have been tried before me in

Jury Part I on January 7, 1974. As I shall demonstrate

below, entire basis of my action was to carry out my sworn

duty to conduct a fair and impartial trial.

It must be emphasized that neither petitioner’s re-

ligious beliefs and practices are at issue in this matter.

What is important is that if petitioner were permitted to

represent a criminal defendant before a jury while wearing

a clerical collar, there would be a substantial danger that

jurors would draw impermissible inferences in the defend-

ant’s favor as to her character and veracity. Clergymen

of all faiths justifiably enjoy the respect and esteem of

the community. Their veracity and good character are

assumed; their views treated with deference. It is no ac-

cident that when a character witness is needed or a letter

to a court or probation officer urging leniency is to be

F 3

Affidavit of Morgan Lane, Judge of Criminal Court of

the City of New York, in Opposition to Petition

written, that defense counsel often turns to the subject’s

priest, minister or rabbi. ,

In the instant case, petitioner is representing a mother

charged with an assault upon her child’s teacher. I under-

stand that in addition to the alleged victim, prosecution

witnesses include other teachers and an assistant principal.

Even if the defense is not seeking to counter balance the

professional standing and esteem in which the public holds

teachers and school administrators with a clergyman-

advocate, this is likely to be the impression that jurors

will get.

While it can be assumed that most jurors would react

favorably to petitioner if seen in a clerical collar, there is

always the possibility that some reactions might be adverse.

As a judge it is my sworn duty to guard against this danger

as well.

Petitioner suggests that we live in a sophisticated age;

and that any prejudices for or against the clerical collar

can be dealt with on an examination of prospective jurors

and in the court’s charge. However, wisdom coming from

long experience in the criminal justice system has estab-

lished that irrationality and bigotry cannot always be elimi-

nated; that some prospective jurors lie and some will fail

to follow the court’s instructions. A more effective means

of assuring that extraneous matters involving this case

will not prejudice the trial of Mrs. Daniels is for petitioner

not to wear a clerical collar while engaged on this case.

In an analysis of this matter, the court wonders what the

reaction of the Legal Aid Society would be if an assistant

F 4

Affidavit of Morgan Lane, Judge of Criminal Court of

the City of New York, in Opposition to Petition

district attorney, who, coincidenially was a clergyman, wore

a clerical collar while prosecuting cases before a jury.

Finally, I should note that People v. Daniels has been

adjourned to January 21, 1974. This matter has been on

the calendar for some time, having been marked peremp-

torily against both sides. Accordingly, I ask that in the

interests of justice, this proceeding be determined without

delay.

WHeEnrErForE, it is respectfully requested that the tempo-

rary restraining order heretofore granted be vacated and

the petition dismissed.

/s/ Morean C. Lane

Morcan Lane

Sworn to before me this

17th day of January, 1974

/s/ Rosert F. Hammer

Assistant Attorney General

of the State of New York

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.