Pleadings Before the California Supreme Court

PETITION FOR WRIT OF MANDATE

IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA

         JAMES KEVIN CRAIG, ) 
                            ) 
                Petitioner, ) 
                            )
                        vs. )
                            )
   STATE BAR OF CALIFORNIA, ) 
                            )
                Respondent. )
___________________________ )

PETITION FOR WRIT OF MANDATE

OR OTHER APPROPRIATE RELIEF;

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT THEREOF
_________________________________________

INTRODUCTION

This matter comes to the California Supreme Court as the Court with original jurisdiction over matters pertaining to the State Bar.

A. Nature of the Case

Petitioner is a Christian, and a philosophical anarchist, and does not believe he can take the oath[1] required of Bar admittees to "support the Constitution of the United States and the Constitution of the State of California" ("Support Oath") without violating conscience, perjuring himself, or risking future disbarment or other penalties.

Petitioner nevertheless feels a call from God (Attachment B) to be admitted to the practice of law, and seeks to have the "Support" segment of the Attorney's Oath waived as violative of the First Amendment of the U.S. Constitution, or in the alternative, modified to meet legitimate state interests, and to be admitted to the practice of law. Petitioner is willing to affirm his intent to "faithfully discharge the duties of an attorney at law to the best of [his] knowledge and ability" (second half of oath).

Restrictions of Free Exercise Imposed by Oath. As a Christian, Petitioner is required to swear only in the Name of the Triune God of Scripture, and is unable to take an oath which courts have declared is secular in nature.

As a Christian, Petitioner is required to swear unqualified allegiance to the Triune God of Scripture, and is unable to take an oath which courts have declared involves the swearing of unqualified allegiance to the State and/or its laws.

Respondent will not admit Petitioner to the practice of law without swearing an oath which will violate Petitioner's conscience in these two respects. The First Amendment of the U.S. Constitution guarantees Petitioner the liberty to practice law without violating his conscience.

A Case of First Impression. While numerous cases have challenged Support Oaths which are ex post facto[2] or oaths in which legislatively-added elements or questions go beyond the basic oath formulae in the U.S. Constitution, no challenge has yet been made to the basic requirement of an attorney to take an oath in support of the Constitution.[3]

The cases cited by the Office of General Council of the State Bar of California in correspondence with Petitioner (Exhibit A) are not contra. In Law Students Civil Rights Research Council v. Wadmond (1971), the Court recognized that the Appellant-Students did not "question the constitutionality of the actual oath an applicant must take before admission to practice" (401 U.S. 154 at 161). In Cole v. Richardson (1972), also cited by Counsel, the Court noted that their recent oath cases "have begun with a recognition that the Constitution itself prescribes comparable oaths in two articles [Art. II, S 1, cl. 8; Art. VI, cl. 3]" (405 U.S. 676 at 681).

Aside from the apparent paradox of a Constitutional challenge to an oath in support of the Constitution, such as Petitioner makes herein, it is likely that the reason the basic oath to support the Constitution has never been challenged is that those who oppose the Constitution have generally (historically) not been opposed simply to taking the oath falsely or pro forma:

The Communist trained in fraud and perjury has no qualms in taking any oath; the loyal citizen, conscious of history's oppressions, may well wonder whether the medieval rack and torture wheel are next for the one who declines to take an involved negative oath as evidence that he is a True Believer.[4]

Petitioner, although unable to swear support for the Constitution, is also unable dishonestly to swear support for the Constitution. No judge with whom Petitioner is acquainted will administer the Support Oath to him when full disclosure of his religious beliefs is made.

Petitioner is ready to affirm legitimate State interests. Petitioner is otherwise qualified to be admitted to the practice of law, having passed the Summer, 1988 Bar Examination. Respondent has delayed commencement of Petitioner's vocation by refusing to admit Petitioner to the practice of law (Exhibit C).

B. Why Extraordinary Relief is Warranted

The Code of Civil Procedure provides for issuance of a writ of mandate or prohibition "to compel the performance of an act which the law specially enjoins . . . in all cases where there is not a plain, speedy and adequate remedy, in the ordinary course of law . . . ." (Code Civ. Proc. SS 1085, 1086.)

The Petitioner in this case has sought relief from the California State Bar (Exhibit A) without remedy (Exhibit C). All administrative remedies have been exhausted (Exhibit B). Thus, for all the reasons stated, this case presents precisely the appropriate circumstances for the issuance of extraordinary relief; accordingly, the writ should issue.

PETITION

By this verified petition, petitioner James Kevin Craig alleges and shows:

1. Petitioner cannot take an oath to "support" the California and U.S. Constitutions without violating conscience.

2. Article VI, Clause 3 of the U.S. Constitution does not prohibit the voluntary taking of a Trinitarian Oath.

3. The First Amendment prohibits the requiring of an Oath which restricts the free exercise of a supernatural religion by establishing a secular one.

4. The State has no interest in unqualified obedience to or belief in a particular form of government, beyond a commitment to reasonable, non-violent means of dispute resolution.

5. Petitioner can satisfy valid legislative interests without taking Support Oath.

PRAYER

WHEREFORE, petitioner James Kevin Craig prays that this court:

1. Issue a peremptory writ in the first instance directing respondent State Bar to admit petitioner to the practice of law in the State of California upon affirming intent to "faithfully discharge the duties of an Attorney at law to the best of his knowledge and ability," but without swearing support of any political Constitution;

2. In the alternative, in addition to writ in petition (1) above, permit Respondent to require Petitioner to eschew recourse or other support of violence against the State, and to affirm absence of loyalty to any foreign government;

3. Permit this oath to be taken voluntarily in a context of Trinitarian Christianity.

4. In the alternative, to substitute a publicly notarized affirmation of the State's interests in (1) and (2) above.

5. Grant such other relief as may be just and proper.

Dated: July 26, 1993

Respectfully submitted,

JAMES KEVIN CRAIG
Pro se

(1). The full oath reads: "I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability."

(2). Cummings v. Missouri 4 Wall 277, 18 L.Ed. 356, (1867) and Ex Parte Garland, 4 Wall 333, 18 L.Ed. 366 (1867).

(3). Cf A.M. Vann, "Validity of Governmental Requirement of Oath of Allegiance or Loyalty -- Supreme Court Cases," Annotation to Whitehill v. Elkins (1967), 19 L Ed 2d 1333, 1335. ("Apparently no case challenging the right of a government to exact such an oath [as found in the U.S. Constitution, Art. 2, sec 1, and Article 6] of its officers has been decided by the Supreme Court on its merits.")

(4). Elfbrandt v. Russell, 384 U.S. 11 at 18; 86 S.Ct. 1238 at 1242 (1966) (citing a committee of the Arizona Legislature urging adoption of the law struck down in this case). See also Torcaso v. Watkins, 367 U.S. 488 at 494n.9, 81 S.Ct. 1680 at 1683n.9. ("In one of his famous letters of 'a Landholder,' published in December 1787, Oliver Ellsworth, a member of the Federal Constitutional Convention and later Chief Justice of this Court, included among his strong arguments against religious test oaths the following statement: 'In short, test-laws are utterly ineffectual: they are no security at all; because men of loose principles will, by an external compliance, evade them. If they exclude any persons, it will be honest men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences. * * *' Quoted in Ford, Essays on the Constitution of the United States, 170. See also 4 Elliott, Debates in the Several State Conventions on the Adoption of the Federal Constitution, 193.")