Appeal from an order of the Eastern District of New York, Jacob Mishler, Judge, dismissing a complaint seeking declaratory and injunctive relief against certain New York State Supreme Court justices, the District Attorney of Kings County and others on the ground that their action in prohibiting appellant, who is a lawyer and Roman Catholic priest, from wearing clerical attire in defending an accused before a jury in a state criminal case violates his constitutional rights. Affirmed.
Before Lumbard, Mansfield and Van Graafeiland, Circuit Judges.
Father Vincent LaRocca, an ordained Catholic priest who is licensed to practice law in the State of New York, appeals from a decision and order entered in the Eastern District of New York by Judge Jacob Mishler dismissing his civil rights complaint under 42 U.S.C. §§ 1983 and 1985(3), which sought declaratory and injunctive relief against the defendants-appellees, who include the District Attorney of Kings County and certain justices of the Appellate Division, Second Department, and of the Supreme Court of New York. LaRocca claims that in bringing about the entry of a state court decision that he not wear his Roman Catholic collar when appearing before a jury as a defense lawyer in a criminal trial the defendants have violated his rights under the First, Ninth, and Fourteenth Amendments. His complaint was dismissed by Judge Mishler on the ground that the state court decision does not violate the First Amendment. We affirm, but for different reasons.
Disposition of this appeal requires a review of the state court proceedings which led to the commencement of this suit. LaRocca, who was ordained a priest more than 20 years ago and at all times wears his Roman Catholic collar in public, was in 1973 admitted to practice law in the State of New York. Thereafter he was employed by the Legal Aid Society and in 1974 was assigned to represent a defendant facing trial on criminal charges in the Criminal Court of the City of New York. When he sought to wear his clerical collar in trying the case on behalf of his client before a jury, Judge Morgan Lane, after objection by the district attorney, directed him to remove the collar before proceeding further with the trial. LaRocca, contending that the order violated his own First Amendment right to free exercise of his religion and his client's constitutional right to counsel of his choice, obtained an order from the Criminal Term of the New York Supreme Court prohibiting the Criminal Court from enforcing its order, LaRocca v. Lane, 77 Misc.2d 123, 353 N.Y.S.2d 867 (Sup.Ct.1974). The Criminal Term judge (Justice Mangano) held that the effect of the trial judge's order was to deny the accused her constitutional right to counsel of her own choice, reasoning that bias could not be presumed from wearing of the clerical collar and that the parties would be protected against prejudice by exercise of their right of voir dire in the selection of the jury. His opinion did not reach the First Amendment issue.
Upon appeal the Appellate Division, Second Department, in a 3-1 decision reversed the Criminal Term, holding that the order prohibiting LaRocca from wearing clerical attire before a jury did not violate his client's constitutional right under the Sixth Amendment (incorporated in the Fourteenth Amendment) to be represented by counsel of her own choice or LaRocca's personal First Amendment right to free exercise of his religion. LaRocca v. Lane, 47 A.D.2d 243, 366 N.Y.S.2d 456 (2d Dept. 1975). With respect to the client's right, the majority reasoned that the client was represented by the Legal Aid Society, that she was not entitled to assignment of specific counsel, and that the Legal Aid Society, if LaRocca refused to remove his collar, could assign another attorney from its staff to represent the defendant. As to LaRocca's First Amendment claim the court held, after balancing the conflicting interests involved, that his right to free exercise of his religion must, to the limited extent of requiring removal of his collar (a requirement which the court viewed as reasonable), yield to the state's compelling interest in assuring the parties a fair and impartial trial, free of bias that might exist on the part of jurors who would view the clerical attire. LaRocca's argument that any risk of prejudice could be eliminated through voir dire of the prospective jurors was rejected. The court noted that, while such a voir dire might result in selection of some who would not be biased, voir dire can be grossly ineffective as a screening device and that LaRocca's clerical attire could affect witnesses. The dissent took the contrary view that, absent evidence of bias, a judicious use of voir dire could sufficiently protect the parties' right to a fair trial, making it unnecessary to deny LaRocca his First Amendment right.
The order of the Appellate Division was affirmed by the New York Court of Appeals, one judge dissenting, in an opinion by Chief Judge Breitel. LaRocca v. Lane, 37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606 (1975). Judge Breitel noted that a "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 furtherance of the administration of justice," 37 N.Y.2d at 582, 376 N.Y.S.2d at 100, 338 N.E.2d at 612. He further stated:
"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 not condonable, that a juror might view differently statements 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 lawyer-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 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 802, 204 N.E.2d 846, 848; People v. Bradner, 107 N.Y. 1, 4-5, 13 N.E. 87, 88).
"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 unconditional or beyond dispensation. The risk that a fair trial could not be had outweighed this incidental limitation." 37 N.Y.2d at 583-84, 338 N.E.2d at 613, 376 N.Y.S.2d at 101-02.
In 1976 the Supreme Court of the United States denied LaRocca's petition for a writ of certiorari. LaRocca v. Lane, 424 U.S. 968, 96 S. Ct. 1464, 47 L. Ed. 2d 734 (1976).
In December of 1978 LaRocca represented Anna Rodriguez, who had been called to appear before a state grand jury. Despite the Court of Appeals' ruling against him in LaRocca v. Lane, supra, he informed the defendant Kaye, an Assistant District Attorney in Kings County, that he intended to wear his Roman Catholic collar while representing Rodriguez. District Attorney Gold thereupon sought an order from the defendant Justice Harry Donnelly prohibiting LaRocca from wearing his clerical collar before the grand jury. In an oral bench opinion Justice Donnelly relied principally on the Court of Appeals' decision in LaRocca v. Lane, supra, stating:
"The Court finds: One, the very presence in the Grand Jury of Reverend LaRocca attired in priestly garb, and, Two, his being referred to as the witness' counsellor, plus the witness' act of conferring with, being advised by, and consulting a Roman Catholic priest projects him prominently and unmistakeably in the eyes of the Grand Jurors as not merely the witness' attorney, but as a Roman Catholic priest espousing and defending her testimony." (App. 25).
LaRocca then appealed to the Appellate Division, which upheld the order, stating, "We cannot draw a distinction between this case and LaRocca v. Lane (37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606, cert. den. 424 U.S. 968, 96 S. Ct. 1464, 47 L. Ed. 2d 734)." In re LaRocca, N.Y.L.J., Jan. 23, 1979, at 14, col. 2 (App.Div. 2d Dep't). He did not seek further review in the New York courts.
Ms. Rodriguez was indicted on February 13, 1979. When she was to be brought to trial, LaRocca, still serving as her attorney, sought an order from Supreme Court Justice Hugh F. McShane, the trial judge, permitting him to wear his collar while representing her at the trial, which was to a jury. Justice McShane issued the order over the District Attorney's objection on December 17, 1979. In a detailed opinion Justice McShane took a position contrary to the New York Court of Appeals' decision in LaRocca. He held that an order prohibiting LaRocca from wearing his clerical collar in representing a defendant at a jury trial would substantially burden his free exercise of his religion and that the state's interest in securing a fair trial free from prejudice could adequately be protected through a voir dire of the members of the jury panel, relying on Justice Shapiro's dissenting opinion in LaRocca v. Lane and a more recent decision of the Appellate Division in Close-It Enterprises, Inc. v. Weinberger, 64 A.D.2d 686, 407 N.Y.S.2d 587 (2d Dept. 1978), which held that a party (as distinguished from an attorney) should be permitted to wear a skull-cap before a jury, since any potential prejudice could be protected against through a voir dire and instructions to the jury. Justice ...