No. 98-__

________________________________

In the

October Term, 1998

________________________________

James Kevin Craig, Petitioner

v.

State Bar of California, Respondent

_______________________________

_______________________________

Petitioner, James Kevin Craig, respectfully petitions this Court for a writ of certiorari to review the decision of the United States Court of Appeals for the Ninth Circuit in this case.

1) Does the "Rooker-Feldman Doctrine" bar a Federal District Court from taking jurisdiction and adjudicating the following two questions if every available state court has said they are "without authority" to "investigate, declare, and enforce" their merits? District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 479, 103 S.Ct. 1303, 1313 (1983).

2) Does the ruling in Torcaso v. Watkins 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), which prohibited the states from requiring theistic oaths of office, also prohibit the states from permitting an applicant to the Bar to swear voluntarily a theistic oath?

3) Does this Court's ruling in In re Summers 325 U.S. 561; 65 S.Ct. 1307 (1945) (holding that a Christian pacifist who disagreed with that part of the constitution requiring military training could not take the "support oath" in good faith) prohibit a prospective attorney at law from modifying the oath by substituting for the "support" language explicit statements of the state interests behind the "support" language?

The opinion of the United States Court of Appeals for the Ninth Circuit is reported at 141 F.3d 1353 (9th Cir. 1998). Pet. App. 1a-5a. The judgment, Pet. App. 7a, and opinion, Pet. App. 8a-17a, of the United States District Court for the Central District of California are unreported.

This Court has jurisdiction under 28 U.S.C. § 1254. The United States Court of Appeals for the Ninth Circuit had jurisdiction under 28 U.S.C. § 1291, entered its judgment in this case in a per curiam order on April 17, 1998, and denied a timely petition for rehearing on June 10, 1998. Pet App. 6a.

On December 1, 1994, the petitioner commenced this §1983 action in propria persona in the United States District Court for the Central District for California, which had jurisdiction over this case under 28 U.S.C. § 1331. The District Court entered a final order and judgment on February 21, 1996, granting the Bar’s motion for summary judgment and denying the petitioner’s motion for summary judgment and dismissing the action on the merits. The petitioner filed a notice of appeal in a timely fashion with the District Court on March 6, 1996.

This case involves the Religion Clause of the First Amendment to the United States Constitution, as applied to the several States through the Due Process Clause of the Fourteenth Amendment.

Petitioner in this case seeks federal adjudication of religious freedom claims where state courts have refused to adjudicate the claims on their merits.

Petitioner seeks admission to the practice of law in California, and to that end seeks two modifications of the required oath, not to be imposed on any other applicant, which would bring that oath in line with the requirements of his religion.

Petitioner’s modifications would convert the current oath into what would otherwise be a "test oath" which, when required by law, is now unconstitutional Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). Petitioner does not ask that this oath be imposed on any other applicant.

The nature of Petitioner’s modifications are set out below, p. 6.

The term "proceedings" is used loosely at this point to describe correspondence between the applicant and the Bar. At no point did the Bar offer the applicant a hearing of any sort, as it had done in Konigsberg v. State Bar 353 U.S. 252 (1957).

As the district court noted, in correspondence with the Bar seeking a hearing on his petition for a modified oath, the applicant clarified the reasons why his religious beliefs will not allow him to take the oath in the precise form found in the statute, Pet. App. 9a. Before undertaking to swear the oath prescribed by the statute, the petitioner carefully read not only the precise language of this oath, but also this Court’s jurisprudence concerning oaths generally. The petitioner’s commitment to a biblical understanding of oaths as a form of religious worship, Pet. App. 9a, entails for him a duty of rigorous honesty.[1] Petitioner’s inspection of this Court’s cases relating to oaths led him to conclude both that he could not trivialize the solemn importance of oaths, as the Court apparently did when referring to an oath as a mere "amenity." Cole v. Richardson, 405 U.S. 676, 684 (1972). For the applicant, an oath is still an oath, and an oath must be an act of religious worship, even if courts permit atheists to take secular oaths.

The Bar refused to consider any deviation from the statutory form of the oath that would accommodate the applicant’s religious beliefs. On June 8, 1993, Jerome Braun, Senior Executive for Admissions wrote a letter to the applicant denying his request in the following terms: "since the form of the oath was established by the California legislature, the Committee [of Bar Examiners] is without authority to modify and has, therefore, declined to grant your request. To be admitted to practice, you must take the oath as set forth in Section 6067 of the California Business & Professions Code." On the view that it was merely carrying out a ministerial duty and was under no obligation from the First Amendment to accommodate the applicant’s religious beliefs, the Bar notified the applicant in a letter of June 8, 1993, that it was "without authority" — including the authority of the First Amendment — to modify the statute in any way. Pet. App. 20a.

Under applicable state law, the only "judgment" that the California Supreme Court could have "reviewed" was the Bar’s view that it is without authority to modify the statutory oath. Without comment on the merits of the case, the California Supreme Court declined to exercise its discretionary jurisdiction over the case, 1994 Cal. LEXIS 2431 (Cal. Apr. 27, 1994), Pet. App. 19a. The applicant was never afforded a meaningful hearing before the Supreme Court of California.

The petitioner sought review in this Court, which denied his petition, 115 S.Ct. 421 (1994).

After this Court denied relief, the petitioner filed this action in the district court, which ruled both (a) that he was precluded from relief by the doctrine of res judicata by virtue of the decision of the California Supreme Court and of this Court in denying review, Pet. App. 12a-15a, and (b) that the Bar was entitled to judgment on the merits on the plaintiff’s claim on the view that the State has a "compelling interest" in the form of the words prescribed in the oath and that the Bar "could not achieve its compelling interests with lesser restrictive alternatives, such as by modifying the support oath." Pet. App. 15a-17a.

In a per curiam order the court of appeals dismissed the petitioner’s cause of action on the ground that the district court lacked subject matter jurisdiction since "Craig seeks review of the California Supreme Court’s decision to deny his individual application." Pet. App. 4a.

This Court should take jurisdiction of this case and remand it for full litigation and decision on the merits. This for two reasons:

1. The unlitigated issues in this case are of profound national importance;
2. The Ninth Circuit has seriously misapplied the "Rooker-Feldman doctrine."

Petitioner seeks admission to the practice of law in California. The California legislature requires attorneys to take an oath in order to be admitted to practice:

Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any [sic] attorney at law to the best of his knowledge and ability.[2]

Petitioner had passed the California Bar Exam and was fully qualified to practice. He could have been admitted to practice at any time upon the taking of the required oath. Petitioner believed the required oath conflicted with the requirements of his religion. He seeks two modifications of the oath.

He seeks first to add language from the Delaware Constitution of 1776: 

"I ________, do profess faith in God the Father,
and in Jesus Christ His only Son,
and in the Holy Ghost, one God, Blessed for evermore;
and I do acknowledge the holy scripture
of the Old and New Testaments to be
given by divine inspiration."[3]

This would create what has been called a "test oath."[4] Petitioner’s theology more resembles that of the framers of the Delaware Constitution than the Torcaso Court: oaths are an act of "religious worship"[5] and must be made in the Name of God.[6] Petitioner seeks the freedom to take such an oath voluntarily, and does not seek to have such a "test oath" imposed on any other applicant.[7]

Petitioner seeks second to modify the oath in order to avoid the harsh effect of the Court’s ruling in In Re Summers 325 U.S. 561; 65 S.Ct. 1307 (1945) Under that decision, Petitioner, a radical pacifist, would be barred from taking an oath to "support the Constitution." Petitioner believed he could modify the oath to avoid conflict with his religious beliefs while protecting all state interests by substituting (for himself and others similarly situated, but imposed on no other applicant) language taken from the decisions of this Court (and others) for the phrase "support the Constitution":

• I swear that am "dedicated to the peaceful and reasoned settlement of disputes between men, and between a man and his government"[8]
• I swear that I am committed to dissuading others from resorting to force or violence[9]
• I swear that I am not loyal to any foreign State.[10]

B. Petitioner’s Modifications are Eminently Constitutional

Prior to Petitioner’s filing in district court, all correspondence with and pleadings by the State Bar have contended that any modification of the oath is the equivalent of no oath at all, and the State Bar has argued that the requiring of an oath is "a settled question." Clearly, Petitioner in this case wishes to take an oath. But there have been no opinions from the State Bar or the state supreme court discussing the merits of Petitioner’s proposed modifications. A discussion of Torcaso v. Watkins, the controversial decision in Smith[11], and a discussion of Macintosh[12], Summers, and related cases are all missing from the record in the state courts. Only on the last page of the State Bar’s brief before the Ninth Circuit were these issues broached. Thus we can only speculate as to why the State Bar will not permit the attorney’s oath to be modified in any way.

It is to be suspected that this case has been haunted by Torcaso. In its brief before the Ninth Circuit, the State Bar characterized the Petitioner as seeking "to substitute inappropriately a theocratic Christian oath for California’s oath of attorneys."[13] This does not reflect any judicial decision on the merits; it is mere prejudice.

The State Bar has drawn frequent comparisons between California’s oath and that prescribed in the federal Constitution (Art. II, sec. 1):

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Two things are noteworthy about this oath. First, the very text of the federal Constitution provides for modification based on religious scruples. The option to "affirm" rather than swear was included for the benefit of Quakers and others who took the New Testament literally.[14] Second, virtually every President since Washington has added additional language to that found in the text of the Constitution, namely, "so help me, God."[15]

But it is no longer sufficient to add "so help me, God" to an otherwise secular oath if one believes only a religious oath satisfies divine requirements. Petitioner notes that a logical result of current First Amendment jurisprudence (which forbids a religious and requires a secular "purpose" and "effect" for all legislation[16]), is that even explicit use of the word "God" (e.g., "so help me, God") has been held to be a "secular" and "patriotic" instance of "ceremonial deism,"[17] "without theological . . . impact."[18] A non-theological oath is, for Petitioner, a violation of the Third Commandment.[19]

Thus, Petitioner believes it is vital for him to take an oath with clarity, one which is consistent with the requirements of Scripture, and not to be equated with the reigning "civil religion."[20] The words of the 1776 Delaware oath accomplish this goal.

C. The Social and Legal Importance of this General Constitutional Challenge to California’s Secular Oath Must Not be Underestimated.

While Petitioner supports the separation of governmental and ecclesiastical powers, he is disturbed by the trend separating government and religion.[21] George Washington applied this concern to the oath in his "Farewell Address":

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.[22]

D. To Reduce the Free Exercise of Religion to A Dubious Right without an Effective Remedy is to Dull "the Lustre of Our Country"[23] and to Diminish One of the Nation’s Most Magnificent Historical Achievements

The decision below merits review for another reason. The case in its present posture is procedural. But the very lack of resolution of the substantive claim in the case ten years after the petitioner passed the California Bar examination implicates a lack of judicial respect for a fundamental right in our constitutional order, the right to free exercise of religion.

Justice Felix Frankfurter has said, "It should not be assumed that oaths will be lightly taken; fastidiously scrupulous regard for them should be encouraged."[24] But courts since Torcaso have had the opposite effect. Government agencies charged with administering oaths have actively discouraged fastidiously scrupulous regard for oaths, often at the cost of one’s profession or adherence to conscientiously held religious beliefs[25] and sacrificing the value of the oath as a solemn, awe-ful inducement to truth or commitment.[26]

Admittedly, lower courts have not been overwhelmed with petitions for voluntary "test oaths." This is due in part to the terse reception (such as seen in this case) accorded those who seek modifications of the oath along religious lines. There are more potential petitioners than the Court may realize. The First Amendment was not designed to stifle distinctive religious expression, but to give freedom to those who might practice their religion with fervor and consistency. They are badly in need of this Court’s authoritative voice.

Distinguished Harvard Psychologist Robert Coles is quoted in the Readers Digest as saying,

Many schoolteachers are afraid to bring up moral and spiritual questions for fear that they violate the Constitution. It’s a tragedy, intellectually as well as morally and spiritually. This might relate to the educational problems among some children. A large number of the schools’ assumptions are materialist and agnostic; there’s a culture conflict between families and schools. That conflict may have some bearing on what children learn and what they don’t learn, and how children behave in school.[27]

A similar decline in the solemnity attached to oaths may explain how politicians behave. And a similar fear exists among many who are afraid to bring up moral and spiritual concerns in their oaths, and have compromised their religious scruples.

Petitioner in this case does not seek to escape the burden of an oath, but to accentuate its importance. This goal is one that was shared by the Founders of this nation. This Court can protect the declining respect for oaths through this case.[28]

If allowed to stand, the decision below would signal exactly the wrong message to the country at a moment in our constitutional history when the fundamental right to free exercise of religion is in transition. The federal and state governments are currently engaged in an intense dialogue about the appropriate standard for safeguarding this freedom after Employment Division v. Smith, 494 U.S. 872 (1990), the enactment of the Religious Freedom Restoration Act, 42 U.S.C. §2000bb1-4, and the invalidation of this legislation as applied to the states, City of Boerne v. Flores, 521 U.S. __, 117 S. Ct. 2157 (1997). For this Court to leave the decision below uncorrected at this moment would be complicity in the denial of any forum in which to determine the appropriate boundaries between governmental commands and the duties of conscience impelled by sincere religious belief.

Although this Court does not sit as another tribunal of errors and appeals, it has granted certiorari in cases where there seems to be no conflicting decisions and no elements of widespread public interest at stake, but one where "the record does not support that holding."[29]

A. This Case has No Record of a Decision on the Merits.

Petitioner seeks to exercise his religion by taking an explicitly theistic oath. The record below is utterly devoid of any explanation as to why Petitioner should not be permitted to do so.

Through informal communication by letter with the State Bar, Petitioner discerned a no-compromise attitude toward modifying the oath. Petitioner asked what administrative remedies he should pursue before petitioning the California Supreme Court for extraordinary relief through a Writ of Mandate directing the State Bar to permit an individual modification of the oath. He complied with those instructions and filed his petition with the California Supreme Court. Petitioner had supplied to the State Bar a very lengthy petition to which the State Bar responded with a terse, one-paragraph response maintaining it was "without authority" to permit a modification of a legislatively-imposed oath. Indeed, that agency behaved as one "without authority": it did not attempt to adjudicate Petitioner’s claims on their merits. There was no opinion or discussion of the constitutional implications of a secular oath, and Petitioner was given no opportunity to respond to the rationale of the State Bar.

Without opinion, and without hearing oral argument, the California Supreme Court refused to grant the Petition for a Writ of Mandate. In fact, the court sua sponte converted the Petition for a Writ of Mandate into a Petition for Review of the State Bar’s decision not to adjudicate the issues raised by Petitioner,[30] and the court declined to review that decision.

Plaintiff then turned to the federal district court, believing that the state court had refused to decide these issues on their merits. But the district court accepted the argument of the State Bar that when the state supreme court refused to review the State Bar’s refusal to exercise authority over this case, that legally constituted a full adjudication on the merits.

Despite the arguments of former California Supreme Court Justice Cruz Reynoso, who joined as counsel in a petition for re-hearing, the Ninth Circuit Court concluded that Petitioner’s claims had received full adjudication on the merits in the state system, and invoked the "Rooker-Feldman doctrine."

This case is unattractive. The Court in Girouard v. United States claimed that "The test oath is abhorrent to our tradition."[31] Yet Test Oaths existed in this country until the Torcaso Court declared them unconstitutional in 1961. It can easily be forgotten that the State must permit religious expression which it cannot require by law, and which the majority might find "abhorrent." From the outset the State Bar viewed this case as abhorrent, and has felt no need to engage the Petitioner in a weighing of the Constitutional merits and demerits through litigation and due process. After Petitioner knocked on the door of the California Supreme Court, the door was just as quickly shut, without comment. The Ninth Circuit’s application of the Rooker-Feldman doctrine would allow a state to bury an important general constitutional challenge without any due process.

B. The Rooker-Feldman Doctrine Was Erroneously Applied in this Case

Relying on Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), the Court in District. of Columbia Court of Appeals v. Feldman,[32] set forth the rule known as the Rooker-Feldman doctrine, that federal district courts lack subject matter jurisdiction to review final adjudications of a state’s highest court.

The Ninth Circuit described the Rooker-Feldman Doctrine as follows:

A plaintiff can challenge the state supreme court’s denial of bar admission to a particular applicant, the validity of the state’s rules governing admission, or both. See Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 485 (1983). Lower federal courts lack subject matter jurisdiction over the first type of challenge, even if unconstitutional action by the state is alleged, because exercising jurisdiction would involve the review of a final judicial decision of the highest state court in a particular case. See id. at 486. Orders of a state court relating to the admission of an individual to the state bar may be reviewed only by the United States Supreme Court on writ of certiorari to the state court, and not by means of an original action in a lower federal court. See McKay v. Nesbett, 412 F.2d 846, 846 (9th Cir. 1969), cited with approval in Feldman, 460 U.S. at 484 n.16. In contrast, a general attack on a state’s admission rules may be heard by lower federal courts because a state supreme court acts in a nonjudicial capacity when it promulgates such rules. See Feldman, 460 U.S. at 485, 487.[33]

In explaining the Rooker-Feldman Doctrine, the Second Circuit has added,

The [Feldman] Court also held that to the extent that the plaintiff’s claims were "inextricably intertwined" with the state court’s determinations, the federal district court did not have jurisdiction. Feldman, 460 U.S. at 482-84 n.16, 103 S.Ct. at 1316 n.16; Texaco Inc. v. Pennzoil Co., 784 F.2d 1133, 1144 (2d Cir. 1986), rev’d on other grounds, 481 U.S. 1, 107 S.Ct. 1519, 96 L.Ed.2d 1 (1987)[34]

In sum, to bar a federal court from hearing a case under Rooker-Feldman, the following must be established:

1. a judicial, not legislative or ministerial act by the state
2. not a general constitutional challenge, or one
3. "inextricably intertwined" with state proceedings..

None of these apply to this case.

1. The State Action in this case was not "Judicial"

The Third Circuit, following Feldman,[35] has distinguished "judicial" and "legislative" acts from "ministerial" acts.[36] The State Bar and the State Supreme Court both performed "ministerial" rather than "adjudicative" acts. The State Bar did not "investigate, declare, and enforce ‘liabilities as they [stood] on present or past facts and under laws supposed already to exist.’"[37] The State Bar simply declared that it was "without authority" to modify the oath, and so no "judicial inquiry" was made into the constitutionality of a self-imposed "test oath."

The State Bar’s actions are utterly inconsistent with a "judicial inquiry." The State Bar never met with this Petitioner, conducted no hearings of any kind, did not depose the Petitioner, served no interrogatories,[38] did not set forth its own understanding of the Torcaso or Summers cases, did not articulate its understanding of the level of scrutiny it believed was constitutionally required, nor how it applied that scrutiny to the facts in this case, of which facts it confessed, by its conduct in federal district court, to have had no knowledge, and Petitioner had no opportunity to respond to the State Bar’s legal theories; all of these actions are part of the Rooker-Feldman concept of "judicial inquiry," and they would have taken place in federal court. Had the State Bar intended to conduct a "judicial inquiry" to determine whether the voluntary modification of the oath was a federally protected right, an inquiry in which Petitioner’s professional future hung in the balance, it would have conducted itself according the standards of due process articulated by the Court in Willner v. Committee on Character (373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963). Since it did not, we must assume that the State Bar merely made a ministerial determination that it was "without authority" to act on Petitioner’s request for a modification of the legislatively-mandated oath.

Petitioner invited the State Supreme Court to consider the general constitutional challenge to the secular oath required by the California legislature. In a petition for a Writ of Mandate, Petitioner included a lengthy analysis of the Torcaso case and the meaning of "religion" in the ratifying conventions of the states. That Petition, however, was converted by the state court sua sponte into a petition to review the ministerial act of the state bar, and the state Supreme Court declined to review the action of the Bar.

It is important to note that the Ninth Circuit Court’s conclusion that this case was adjudicated in the state system is based not on the fact that the State Supreme Court undertook full review of the issues in this case, but rather on the fact that the court did not. The decision of the state supreme court was not to review the State Bar’s action.

The court of appeals departed from Feldman, 462 U.S. at 478, when it mischaracterized this case as "judicial action" and an "adjudication." Pet. App. 5a. The error was not inadvertent. The court of appeals was fully briefed on the state law precedents governing summary disposition of a case by the Supreme Court of California. For example, the state supreme court noted in Friends of Mammoth v. Board of Supervisors, 8 Cal. 3d 247, 502 P. 2d 1049, 1063 (Cal. 1972): "The rule is well settled that a denial by this or the appellate court of an application for a writ without opinion ‘is not res judicata of the legal issues presented by the application unless the sole possible ground of the denial was that the court acted on the merits, or unless it affirmatively appears that such denial was intended to be on the merits.’" The Ninth Circuit knows of this rule and relied upon it in another case, Miofsky v. Superior Court, 703 F. 2d 332 (9th Cir. 1983), but ignored it here. Recently, moreover, the Supreme Court of California removed the "sole possible ground" exception and transformed the general norm about the lack of preclusive effect of its denials of discretionary review into an absolute rule. Kowis v. Howard, 3 Cal. 4th 888, 838 P. 2d 250 (1992). Just as a denial of certiorari, or a dismissal of the writ as improvidently granted, would under the settled practice of this Court, "not establish the law of the case or amount to res judicata on the points raised." Hughes Tool Co. v. Trans World Airlines, 409 U.S. 363, 366 n.1 (1973), so also the denial of discretionary review by the Supreme Court of California is not, under the binding precedents of that court, a judicial adjudication on the merits of the applicant’s claim.[39] In Feldman this Court taught expressly that the predicate for lack of subject matter jurisdiction by federal courts was a state court adjudication. As Justice Brennan wrote in Feldman: "A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end."[40] The State Bar undertook in this case no investigation, declared no rights or duties, and enforced no liabilities. The Supreme Court of California simply refused to review this action. The decision of the court of appeals is an egregious departure from this Court’s reasoning in Feldman.

The Ninth Circuit and the State Bar rely on the case of Consumers Lobby Against Monopolies v. Public Utilities Commission, 25 Cal.3d 891, 901 (1979), in which the refusal of the State Supreme Court to review a decision by the Public Utilities Commission was held to be a final adjudication on the merits for res judicata purposes. The PUC hearing was a "judicial inquiry" under Feldman standards, involving "long and complex rate proceedings entailing numerous public hearings throughout the state, at which the commission took testimony prepared by its staff, [affected business interests] and several other interested parties." 25 Cal. 3d at 898. The State Bar conducted no judicial inquiry, but only a ministerial act. Refusal of the State Supreme Court to review that ministerial act does not constitute a "judicial inquiry" sufficient to invoke the Rooker-Feldman doctrine. It remained for the district court to "investigate, declare and enforce" Petitioner’s constitutional right to take an explicitly religious oath.

For an example of a decision stressing that Rooker-Feldman is applicable where a federal litigant has already had a full and fair hearing in state court proceedings in which he participated fully, was represented by counsel, and had or could have had a final adjudication on his claims, see Moccio v. New York State Office of Court Administration, 95 F. 3d 195 (2d Cir. 1996) (noting that the Rooker-Feldman doctrine is at least coextensive with the principles of res judicata ("claim preclusion") and collateral estoppel ("issue preclusion"); see also Giakoumelos v. Coughlin, 88 F.3d 56, 57 (2d Cir. 1996) (case transferred to Appellate Division because it involved issue of whether administrative determination was supported by substantial evidence). These cases speak of the judicial character of state court adjudication in a way that the decision below could not, for the plain reason that the highest state court in Craig had refused to "investigate, declare, and enforce" the merits of his claim.[41]

Professor Chang has accurately stated the rationale of the Rooker-Feldman doctrine:

In essence, Rooker expresses the same federalism principles that Justice Rehnquist enunciated in Huffman: that intervention after trial is duplicative of the trial that has already taken place, implying a direct aspersion on the capabilities and good faith of the state courts in resolving constitutional issues, and that posttrial federal nullification is offensive to a state which has already won a determination that its policies have been violated.[42]

Since there were no proceedings in state courts to reach the merits of this case, adjudication in the district court would not be duplicative. When the State Bar deposed the Petitioner and served him a series of interrogatories during pre-trial procedures in district court, it began taking the very first steps of Feldman’s "judicial inquiry": to "investigate, declare and expound."[43] Holding that the State Bar conducted only a ministerial action with regard to Petitioner’s constitutional challenge to California’s secular oath casts no aspersions on that body. It is only if the State Bar contends that there was a full adjudication on the merits that any aspersions are cast, for such an adjudication would have taken place with a shocking disregard for due process.

This case is not "predicated upon a conviction that the state court was wrong."[44] It is predicated upon a conviction that the state court was silent, and chose not to decide the merits of this case.

2. Petitioner Raises a General Constitutional Challenge

Even if the refusal of the State Supreme Court to review the State Bar’s decision that it was "without authority" to modify the oath is held to be a "judicial inquiry" sufficient to invoke Rooker-Feldman, that doctrine permits a federal court to hear a general constitutional challenge to rules promulgated in a legislative act.

The Supreme Court noted that to the extent Feldman "mounted a general challenge to the constitutionality" of the bar rule, the federal district court did have subject matter jurisdiction. [Feldman 460 U.S.] at 483, 103 S.Ct. at 1316. . . . A district court in reviewing a bar rule is not . . . reviewing the final judgment of a state court — a task delegated by 28 U.S.C. § 1257 to the Supreme Court. In short, federal district courts "have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in non-judicial proceedings, which do not require review of a final state-court judgment in a particular case." Feldman, 460 U.S. at 486, 103 S.Ct. at 1217.[45]

Petitioner was fully qualified for admission to the bar, and there were no disciplinary proceedings against him. He could at any time after passing the Bar Examination have been admitted to practice, were he willing to take the statutorily required oath. But the oath as written and interpreted by courts was contrary to Petitioner’s religious beliefs. By petitioning the State Bar to accept a modified oath, Petitioner raised general constitutional questions about the oath prescribed by the California Legislature. Petitioner knew of others of like religious belief, and envisioned a favorable precedent as protecting their rights, as well as his own, including those in innumerable other professions who must take an oath.

The petitioner expressly relied upon Feldman in its reply brief before the Court of Appeals, at 10, for the proposition that federal district courts "have subject matter jurisdiction over ‘a constitutional challenge to the state’s general rules and regulations governing admission" to the Bar, citing Feldman, 460 U.S. at 485.

The general character of the challenge presented by the petitioner to the general practice of the California Bar is manifest in the Bar’s letter of June 8, 1993, Pet. App. 20a, that triggered this litigation. From the date of this letter to the present, the position of the Bar has been absolute, brooking of no exceptions, uncompromising, and unyielding. Its refusal to accommodate the petitioner’s claim of religious freedom is thus not limited to this particular applicant, but to all applicants similarly situated who raise a legitimate and sincere claim about the form of the statutory oath. The Bar has refused steadfastly to consider any deviation from the precise form of words found in the statute. The only fair construction that may be placed upon this fact is that the petitioner has not brought a particular plea for relief, but a general challenge to the validity of the state’s rules governing admission to the bar, as applied to the circumstances of his own beliefs. Under Feldman, 460 U.S. at 485, district courts most assuredly have jurisdiction to hear such complaints. See also Giannini v. Real, 711 F. Supp. 992, 995 (C.D. Cal. 1990) (citing Feldman), aff’d, 911 F. 2d 354 (9th Cir. 1990), cert. denied, 498 U.S. 1012 (1990); and Nicholson v. Alabama State Bar, 338 F. Supp. 48 (M.D. Ala. 1972).

If a general challenge were raised, for example, to the previous general regulation of the Illinois Bar to exclude women from the practice of law, Bradwell v. Illinois, 86 U.S. 130 (1872), or to the racial discrimination practiced more recently by the Pennsylvania Bar, Murphy v. Pennsylvania Board of Bar Examiners, 482 Pa. 43, 393 A. 2d 369 (1978), cert. denied, 440 U.S. 901 (1979), reliance upon Feldman would be as completely misplaced as it is here.

Petitioner did not believe he could raise these claims in federal court without first petitioning the State Bar to accept a modified oath. In theory the State Bar could have accepted Petitioner’s modified oath and admitted Petitioner. But even the denial of the petition by the State Bar was inadequate to generate a "case or controversy." The Ninth Circuit has held that there is no deprivation of federally protected rights until the State Supreme Court acts on the petition.[46]

The court of appeals construed the complaint as stating "an individual rather than a general challenge to the oath requirement" Pet. App. 3a.[47] In support of this view, the court stated in its per curiam order: "Craig claims that he ‘cannot take the entire oath without violating his conscience’ and ‘is thus burdened with the requirement to choose between practicing law and affirming religious beliefs which are not his own, by swearing his "support" for Constitutionalism.’"[48] It is no more true that Craig’s challenge to the support oath on religious grounds is confined to himself personally than, for example, this Court’s ruling in Sherbert v. Verner, 374 U.S. 398 (1963), benefitted only Adele Sherbert or, for that matter, only members of her particular religious community, the Seventh-day Adventist Church.

Petitioner thus fulfilled the requirements to bring a general constitutional challenge to the district court.

3. The General Constitutional Challenge was Not "Inextricably Intertwined" with the State Court Decision

The Ninth Circuit noted that federal courts lack jurisdiction over constitutional claims which are "inextricably intertwined" with the state court decision:

Inferior federal court jurisdiction is lacking to the extent that a plaintiff’s constitutional claims are intertwined with the state court’s prior determination. See Feldman, 460 U.S. at 482-84 n.16 ("If the constitutional claims presented to a United States District Court are inextricably intertwined with the state court’s denial in a judicial proceeding of a particular plaintiff’s application for admission to the state bar, then the District Court is in essence being called upon to review the state court decision. This the District Court may not do").[49]

The Moccio Court also noted the difficulty courts have in following this doctrine:

Since Feldman, the Supreme Court has provided us with little guidance in determining which claims are "inextricably intertwined" with a prior state court judgment and which are not. But see Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 24-26 (1987) (Marshall, J., concurring) (applying Rooker-Feldman). The result has been inconsistency in the lower federal courts faced with challenges based upon the Rooker-Feldman doctrine. See Gary Thompson, Note, The Rooker-Feldman Doctrine & the Subject Matter Jurisdiction of Federal District Courts, 42 Rutgers L. Rev. 859, 880-84 (1990).[50]

Other Circuits have devised two tests which the Ninth Circuit should have followed in this case. The first examines the basis of the state court’s decision; the second examines the nature of the constitutional claim.

1. The State Court did not Decide the Merits of the Federal Claim

As quoted by the Third Circuit, the Eighth Circuit Court of Appeals wrote recently:

A federal district court has jurisdiction over general constitutional challenges if these claims are not inextricably intertwined with the claims asserted in state court. A claim is inextricably intertwined if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. In other words, Rooker-Feldman precludes a federal action if the relief requested in the federal action would effectively reverse the state decision or void its ruling. Accordingly, to determine whether Rooker-Feldman bars [plaintiff’s] federal suit requires determining exactly what the state court held . . . . If the relief requested in the federal action requires determining that the state court decision is wrong or would void the state court’s ruling, then the issues are inextricably intertwined and the district court has no subject matter jurisdiction to hear the suit.

Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir. 1995) (citations omitted).[51]

Commenting in Gulla v. N. Strabane,[52] the Third Circuit said:

As this passage from FOCUS indicates, the first step in a Rooker-Feldman analysis is to determine "exactly what the state court held." Id. Accordingly, we begin by examining the judgments of the Pennsylvania courts."[53]

When that step was taken, the Third Circuit reached the conclusion that should have been made by the Ninth Circuit:

In this case, we conclude that the Gullas are not precluded from bringing their federal claims because the state court could not and did not adjudicate the merits of their constitutional claims. . . . See, e.g., . . . Guarino, 11 F.3d at 1161-62 & n.8 ("A litigant suffers no real harm by attempting to raise his or her constitutional claim in state court: if the state court refuses to address the constitutional claim, the litigant can then raise the claim in federal court without any jurisdictional, abstention, or collateral estoppel problems.") . . . .[54]

In FOCUS, the Third Circuit saw that

The judge did not decide FOCUS’ constitutional challenge . . . or any other issue that is a predicate to the claim in the federal proceeding. In short, we have no reason to believe that in order for FOCUS to prevail in federal court, the court must decide "that the state court decision . . . is wrong." Charchenko, 47 F.3d at 983. In this respect, this situation is indistinguishable from the one we faced in Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994). In that case, some of the plaintiffs had filed petitions with the Philadelphia Court of Common Pleas asking relief on the basis of fraud and alleged constitutional violations in connection with an election. The court refused to entertain their claims asserting that it lacked jurisdiction to do so. We held that a subsequent proceeding in the district court was not barred by the Rooker-Feldman doctrine:

[T]he court was not barred under Rooker-Feldman from hearing the constitutional [claims] because these claims had not been determined by the state court, nor were they inextricably intertwined with a prior state court decision. Specifically, the court of common pleas dismissed Marks’ and the RSC’s claims without reaching the merits. Therefore, the district court was not faced with a situation where it was asked to review a determination of the state court.

. . . Here, the district court could (and did) find that Marks’ and the RSC’s fraud and constitutional claims had merit without also finding that the court of common pleas erred when it dismissed their proceedings. Marks v. Stinson, 19 F.3d at 886 n.11.[55]

The 11th Circuit has said, "Under a Rooker-Feldman analysis we look . . . at the actual arguments of the parties and the issues decided in state court."[56]

The facts in FOCUS parallel those in this present case:

By order of December 12, 1994, the supreme court denied that petition without giving any reason.

Once again, we conclude that a federal court determining the constitutionality of the gag orders would not need to conclude that the state court’s decision was erroneous. Nor would it be required to invalidate in any way the state court’s dispositive order.[57]

The State Bar in this present case refused to engage in "judicial inquiry" because it said it was "without authority." The state supreme court declined to review that action without giving any reason.

The Ninth Circuit in this case was blinded by what it thought was an "abhorrent" oath. It did not even follow its own precedent in Worldwide Church of God v. McNair, when it said:

As the Tenth Circuit noted in Razatos, 746 F.2d at 1433, Feldman’s language does not provide a "bright line" rule to distinguish claims that are inextricably intertwined with a state court’s decision from those that are not. The Razatos court concluded that claims are "inextricably intertwined" if the district court must "scrutinize not only the challenged rule itself, but the [state court’s] application of the rule. . . ." If, in order to resolve the claim, "the district court would have to go beyond mere review of the state rule as promulgated, to an examination of the rule as applied by the state court to the particular factual circumstances of [the plaintiff’s] case," then the court lacks jurisdiction. See also Brown v. Board of Bar Examiners, 623 F.2d 605, 610 (9th Cir. 1980) (because the plaintiff’s complaint and requested relief involved an application of the challenged rule to his particular case, and would require a review of the state court’s decision, the court concluded that it lacked jurisdiction); Czura v. Supreme Court of South Carolina, 632 F.Supp. 267, 270 (D.S.C. 1986)(same).

Robinson, 753 F.2d at 1472, contains this court’s only detailed discussion of Feldman’s language . . . :

[T]he crux of the question is whether there has already been actual consideration of and a decision on the issue presented. If consideration and decision have been accomplished, action in federal court is an impermissible appeal from the state court decision. If no consideration has been given, or any decision on the matter is ambiguous, it is unlikely that the issues presented to the state high court and to the federal court are so "inextricably intertwined" that the federal court cannot take jurisdiction.. (citations omitted).

See also Randolph v. Lipscher, 641 F.Supp. 767, 781 n.8 (D.N.J. 1986) (arguing that application of a complex "inextricably intertwined" test is no longer necessary in light of Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); the court simply applies res judicata principles).[58]

In Worldwide Church, the Ninth Circuit denied jurisdiction under Rooker-Feldman because

The district court would be required to review the state court’s decision regarding application of the plaintiff’s federal constitution theories to the particular factual circumstances of this case. The district court may not do so. See Feldman, 460 U.S. at 486, 103 S.Ct. at 1316; Razatos 746 F.2d at 1433.[59]

It would be impossible for anyone to review the state court’s decision regarding application of the petitioner’s federal constitutional challenges to the "particular factual circumstances of this case" because the court chose not to do so. No decision was ever made. The state court’s only action was to refuse to review the decision of the State Bar. Similarly, the State Bar did not adjudicate petitioner’s constitutional claims, because it was "without authority" to modify the oath.

The Petitioner in this case seeks to take voluntarily the kind of oath prohibited to the states by Torcaso v. Watkins. The State Bar said it was "without authority" to modify the legislatively mandated oath.. The state supreme court did not review the claimed constitutionality of a self-imposed "test oath"; its only decision was not to review the action of the State Bar in declaring itself "without authority" to modify the oath. In its brief before the state supreme court, the State Bar never referred to Torcaso. Federal Review of the state court’s decision is not sought, since the decision was strictly ministerial. The Ninth Circuit should have followed the Third Circuit in looking beyond the mere fact of a final judgment by the state supreme court into the nature of that judgment.

Federal court review of these issues is eminently appropriate.

2. The Constitutional Claim Preceded the Decisions of the State Courts.

The second test asks whether the constitutional claim complains of the state court process, or whether it arose independent of the state court decision.

In order to determine the applicability of the Rooker-Feldman doctrine, the fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment. If the injury alleged resulted from the state court judgment itself, Rooker-Feldman directs that the lower federal courts lack jurisdiction. If the injury alleged is distinct from that judgment, i.e., the party maintains an injury apart from the loss in state court and not "inextricably intertwined" with the state judgment, see infra, res judicata may apply, but Rooker-Feldman does not.

Our decision in GASH, 995 F.2d 726, . . . focussed upon the idea that Rooker-Feldman was about an injury caused by the state court judgment itself. We summarized the result in Ritter v. Ross, 992 F.2d 750 (holding that Rooker-Feldman barred federal jurisdiction in case arising out of state foreclosure judgment), as follows: "[T]he Rooker-Feldman doctrine barred the litigation, because the plaintiffs’ injury stemmed from the state judgment—an erroneous judgment, perhaps, entered after procedures said to be unconstitutional, but a judgment nonetheless." GASH, 995 F.2d at 728 (emphasis added). We further elaborated upon this theory of injury at the hands of the state court in our explanation of why no jurisdiction existed to consider the federal claims of GASH:

Just as in Ritter, [GASH] has no claim independent of the state court’s adverse decision. To put this differently, the injury of which GASH complains was caused by the judgment, just as in Rooker, Feldman, and Ritter. GASH did not suffer an injury out of court and then fail to get relief from state court; its injury came from the [state] judgment. . . .

Id. at 728-29 (emphasis in original).[note omitted] Thus the distinction between a federal claim alleging injury caused by a state court judgment (necessarily raising the Rooker-Feldman doctrine) and a federal claim alleging a prior injury that a state court failed to remedy (raising a potential res judicata problem but not Rooker-Feldman) has been recognized in this circuit at least since our decision in GASH. [note omitted][60]

In Centres v. Town of Brookfield, 148 F. 3d 699 (7th Cir. 1998) Judge Ripple carefully noted that to determine the applicability of Rooker-Feldman, a federal court must determine whether the injury alleged by a federal plaintiff resulted from the state court judgment itself. If so, the Rooker-Feldman doctrine applies and strips the federal court of jurisdiction to hear the claim. "By contrast, if the alleged injury is distinct from the state court judgment and not inextricably intertwined with it, the Rooker-Feldman doctrine does not apply." Id. at 702. Once again, the decision below presents a direct conflict with another circuit on the "crucial question" about the nature of the constitutional challenge raised by Petitioner.

The Petitioner in this present case does not allege that the state court process was constitutionally defective, since the process was basically one of ministerial abstention. Petitioner’s constitutional challenge is not directed at a "judicial inquiry" in the state of California, it arose when he passed the California Bar examination, and was otherwise qualified for admission to practice, and was faced with a conflict of conscience stemming from a law apparently prohibiting the free exercise of his religion. The State Bar determined it was "without authority" to redress this injury, and the state supreme court merely declined to review that decision. A federal court can reach the merits of a claim that a secular oath to "support the constitution" thwarts the free exercise of religion without saying that the decision in the state court was wrong.

There is a central point of tension between these cases and the decision below. In its rush to judgment in the per curiam order, the Ninth Circuit ignored what all of the other circuits have grasped: when a plaintiff seeks to litigate a claim in a federal court, the existence of a state court judgment in another case bars the federal proceeding under Rooker-Feldman only when entertaining the federal court claim would be the equivalent of an appellate review of a judicial determination. Ignoring the binding state law on the characterization of a denial of review by the Supreme Court of California has led the Ninth Circuit into a basic misunderstanding of the Rooker-Feldman doctrine, which applies only when in order to grant the federal plaintiff the relief sought, the federal court must determine that the state court judgment was erroneously entered or must take action that would render that judgment ineffectual.

The Signers of the Constitution did not intend to prohibit the states from requiring theistic oaths of office, much less did they seek to prohibit individuals from taking voluntarily such theistic oaths.

The significance of the oath has diminished as it has been secularized.

This case offers the Court an opportunity to speak to the significance of the oath.

The Court below has profoundly erred in its application of the Rooker-Feldman doctrine, and if allowed to stand, would strip the First Amendment of any remedy.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Attorneys for the Petitioner

(The original petition has been edited; those above should not be blamed for this edition. —kc)

NOTES

(1) If a similar position were maintained by all members of the bar in depositions in civil cases, for example, the country would not now be in constitutional crisis.

(2) Business and Professions Code, § 6067.

(3) Delaware Constitution, Art. 22 (adopted Sept. 20, 1776), 1 Del. Code Ann. 117 (Michie, 1975).

(4) Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) (holding unconstitutional the theistic test oath required in the Maryland Constitution.)

(5) Cf. Westminster Confession of Faith, (1647) ch 22 ("A Lawful oath is a part of religious worship. . . ."); J. Witherspoon, "Lectures on Moral Philosophy," Lect. 16 on Oaths and Vows, in The Works of John Witherspoon, (1815) VII:139-140 ("An oath is an appeal to God, the Searcher of hearts, for the truth of what we say and always expresses or supposes an imprecation of His judgment upon us if we prevaricate. An oath, therefore, implies a belief in God and His Providence and indeed is an act of worship."); Chancellor James Kent, Memoirs and Letters of James Kent, 164 (1898) (noting that an oath of office was a "religious solemnity" and that to administer an oath was "to call in the aid of religion."); S. Epstein, "Rethinking the Constitutionality of Ceremonial Deism," 96 COLUM. L.REV 2083, 2110-12 (1996) (religious bases of oaths)

(6) Deuteronomy 6:13 ("Thou shalt fear the Lord thy God, and serve Him, and shalt swear by His Name.")

(7) In Torcaso v. Watkins, the Court held that such a theistic oath was "unconstitutional" when imposed on atheists by law, but did not decide the issue of whether such a theistic oath could be taken voluntarily in the face of a legislatively-mandated secular oath.

(8) Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 at 166, 91 S.Ct. 720 at 728, 27 L.Ed.2d 749 (1971).

(9) U.S. v. Schwimmer, 279 U.S. 644, 651, 49 S.Ct. 448, 450, 73 L.Ed. 889 (1929).

(10) Cases concerning the reluctance of applicants to take support oaths or answer questions concerning political association have also turned on the question of their loyalty to a foreign state:
Pre-American Common Law: Imbrie v. Marsh, 3 N.J. 578 at ---, 71 A2d 352 at 357, 363, 18 ALR2d 241 at 247, 253 (1950)(rival sovereigns);
Revolutionary America [Article VI, Section 3]: Imbrie at A2d 364, ALR2d 255; (England);
Civil War Era: Cohen v. Wright, 22 Cal.Rptr. 297 at 299 (1863)(brief for appellant), 307, 310, 311, 330; Cummings v. Missouri, 71 U.S. 277 at 317, 327, 18 L.Ed 356 at 361, 364 (1867); Imbrie v. Marsh at A2d 365, ALR2d 256 (the Confederacy);
Cold War Era: Konigsberg (I) v. State Bar of California, 353 U.S. 252 at 298, 77 S.Ct. 722 at 745 (1957); cf. Barenblatt v. United States, 360 U.S. 109 at 130n31, 79 S.Ct. 1081 at 1095n.31 (1959); cf. Communist Party v. Subversive Activities Control Board, 367 U.S. 1 at 5-9, 13-14, 51-55, 57, 81 S.Ct. 1357 at 1363, 1364, 1365, 1366, 1368, 1387, 1388, 1389, 1390 (1961); Elfbrandt v. Russell, 384 U.S. 11 at 21, 86 S.Ct. 1238 at 1243 (1966); cf. Wilkinson v U.S. 365 U.S. 399 at 401, 404n5, 81 S.Ct 567 at 569, 571n5 (1961)(the Soviet Union);
Present: Imbrie at A2d 354, 355, 371, ALR2d 244, 245, 362; Speiser v. Randall, 357 U.S. 513 at 515-16, 78 S.Ct. 1332 at 1336 (1958).

(11) Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872 (1990)

(12) United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.E. 1302 (1931)

(13) Brief at 1, emphasis added.

(14) Board of Ed. of Kiryas Joel v. Grumet, 512 U.S. ___ , 114 S.Ct. ___, 129 L.Ed.2d 546, 587 (1994) , (Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting). ("The Constitution itself contains an accommodation of sorts. Article VI, cl. 3, prescribes that executive, legislative and judicial officers of the Federal and State Governments shall bind themselves to support the Constitution "by Oath or Affirmation." Although members of the most populous religions found no difficulty in swearing an oath to God, Quakers, Moravians, and Mennonites refused to take oaths based on Matthew 5:34’s injunction "swear not at all." The option of affirmation was added to accommodate these minority religions and enable their members [15] to serve in government. See 1 A. Stokes, Church and State in The United States 524-527 (1950).") See also, e.g., Michael McConnell, The Origins and Historical Understanding of Free Exercise, 103 HARV. L. REV. 1409, 1467-68 (1990) (noting that by 1789 "virtually all of the States had enacted oath exemptions"). Under the clear teaching of the Court, the duty of neutrality in religious matters requires the government to treat religious groups evenhandedly; it may not extend benefits to one religious community without being willing to make reasonable accommodations of others. See, e.g., Larson v. Valente, 456 U.S. 228 (1982); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

(15) See Epstein, supra note 5, text at note 159.

(16) Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct 1463, 36 L.Ed.2d 151 (1973).

(17) Ironically, the Court in Vidal v. Girard’s Executors, 43 U.S. 127, 11 L.Ed. 205 (1844) holding, inter alia, that a school which would not teach the Bible "is not to be presumed to exist in a Christian country," noted that Deism was a "form of infidelity." 43 U.S. at 198, 11 L.Ed at 234.

(18) Aronow v. U.S., 432 F.2d 242, 243 (CA9 1970). See also Society of Separationists Inc. v. Herman (939 F.2d 1207 (CA5 1991).

(19) Exod. 20:7 ("Thou shalt not take the name of the Lord thy God in vain.")

(20) Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayers containing "‘elements of the American civil religion.’" (at 793 note 14)).

(21) Cf. S. Smith, Separation and the "Secular": Reconstructing the Disestablishment Decision, 67 TEX. L. REV. 955 (1989).

(22) 1 Messages and Papers of the Presidents 220 (Richardson ed. 1896).

(23) John T. Noonan, Jr., The Lustre Of Our Country: The American Experience Of Religious Freedom 74 (1998).

(24) Concurring in American Communications Association CIO v. Douds 399 US 382 at 420, 70 S.Ct. 674 at 695 (1950).

(25) Smith v. County Engineer of San Diego Co., 266 C.A.2d 645, 72 Cal.Rptr. 501 (1968). (Religious modification of oath denied. Plaintiff’s denomination [Reformed Presbyterian Church of North America {Internet: http://www.covenanter.org/}] required theocratic oaths.)

(26) The Court in Cole v. Richardson, 405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593 (1972) described the modern oath as a mere "amenity" 405 U.S. at 685, 92 S.Ct. at 1337.

(27) Robert Coles, "Points to Ponder" 139 Reader’s Digest 99-100 (no. 832, August 1991). (Originally appearing in Time Magazine.) What is significant about this quote is not that the Reader’s Digest is a recognized authority in Psychology or Law, but that the Reader’s Digest has perhaps the largest subscription of any periodical in the United States. Its publishers have shown a knack for printing articles which reflect the aspirations, feelings, and fears of millions of Americans.

(28) R. Lerner, The Supreme Court as Republican Schoolmaster, 1967 SUP. CT. REV. 127.

(29) Memphis v. Greene, 451 U.S. 100, 102 (1981). See also Thompson v. City of Louisville, 362 U.S. 199 (1960); Washington v. United States, 357 U.S. 348 (1958).

(30) This fact was unknown to Petitioner until filing in Federal District Court. At that time, Petitioner secured a certified copy of the State Supreme Court record and discovered that someone had hand written in the upper right-hand corner of Petitioner’s Title Page for his Petition for Writ of Mandate: "Ct.Clerk says treating as petition for review." (emphasis in original)

(31) Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 829 (1946).

(32) District. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 485 (1983).

(33) Craig v. State Bar of California, No. 96-5539, slip op at 3593.

(34) Moccio v. New York State Office of Court Admin., 95 F.3d 195, 198 (CA2 1996).

(35) Feldman at 460 U.S. 477, 479, 103 S.Ct. at 1312, 1313.

(36) Guarino v. Larsen, 11 F.3d 1151 at 1157-58 (CA3 1993)

(37) Feldman at 460 U.S. 477, 479, 103 S.Ct. at 1313, quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210 at 226, 29 S.Ct. 67 at 69, 53 L.Ed. 150 (1908).

(38) Although the State Bar raised a res judicata defense in district court, it also made strategic steps to "investigate, declare, and enforce" the merits of Petitioner’s claim should the defense be rejected: it served a series of interrogatories on Petitioner and deposed him, asking questions relating to the fundamental theological issues of the case. These actions would have been entirely superfluous had there been a "judicial inquiry" in the state system.

(39) Even if the counsel for the California State Bar were unaware that a denial of certiorari is not an adjudication on the merits, see note 6 above, one is entitled to assume that the California State Bar is at least familiar with the teaching of the Supreme Court of California on California practice. Both before the district court and the court of appeals the Bar misstated the principles of state law that bind the federal judiciary in cases such as this.

(40) Feldman, 462 U.S. at 477, citing Prentis v. Atlantic Coast Line, 211 U.S. 210, 226 (1908).

(41) District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 479 (1983).

(42) W. Chang, Rediscovering the Rooker Doctrine: Section 1983, Res Judicata and the Federal Courts, 31 HASTINGS L. J. 1337, 1373-74, summarizing Huffman v. Pursue, Ltd., 420 U.S. 592 at 608-09 (1975).

(43) Feldman at U.S. 479, S.Ct. 1313.

(44) Pennzoil, 481 U.S. at 25 (Marshall, J., dissenting)

(45) Leaf v. Supreme Court of State of Wisconsin, 979 F.2d 589, 597 (CA7 1992).

(46) Margulis v State Bar of California, 845 F.2d 215 (CA9 1988).

(47) The court of appeals cited in a footnote a portion of the oral argument below in which counsel for the petitioner appears to have conceded that this case is merely an individual case rather than a general one. Pet. App. 5a, note 2. The full transcript of the oral argument discloses both that counsel for the respondent State Bar conceded that the case involves a general challenge to the general refusal of the Bar ever to modify the form of the statutory language for any reason, and that counsel for the petitioner corrected his mistaken response to the court’s question about this matter during the rebuttal time and apologized to the court for any confusion he created by his misunderstanding of the court’s question at the beginning of the oral argument. The rules of civility governing the mutual relationship between the bench and the bar do not suggest that an error of this sort, especially when promptly admitted as erroneous during the oral argument, should be exploited by a court as the dispositive reason to reject a serious constitutional claim of national significance.

(48) Whatever the term "constitutionalism" might entail, the petitioner has not objected to supporting it if by that is meant a commitment to observing the duties required in the second half of the statutory oath.

(49) Craig v. State Bar, slip op. 3594 n.1.

(50) Moccio, id.

(51) Focus v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (CA3 1996).

(52) Gulla v. Strabane, 146 F.3d 168 (CA3 1998).

(53) Gulla, at 171

(54) Gulla at 173.

(55) FOCUS, at 841. See also Ernst v Child and Youth Services of Chester Co, 93-1929 (CA3 Mar 12, 1997).

(56) Datz v. Kilgore, 51 F.3d 252, 254, (CA11, 1995).

(57) FOCUS, 841-42.

(58) Worldwide Church of God v. McNair, 805 F.2d 888, 892 (CA9 1986).

(59) Worldwide at 893.

(60) Garry v. Geils, 82 F.3d 1362, 1366 (CA7 1996).

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