A Kings Marijuana Possession Lawyer said that, petitioner an attorney admitted to the Bar in the State of New York and employed by the Legal Aid Society, Criminal Defense Division, since 1973, and a Roman Catholic priest, seeks permission of this court to continue to wear his clerical collar while representing defendant, as her attorney, upon the trial of an indictment charging defendant with Criminal Sale of Marijuana in the Third Degree and Criminal Possession of Marijuana in the Third Degree.
A Kings Drug Possession Lawyer said that, the District Attorney of the County of Kings has entered an objection to the wearing of clerical garb by the Reverend petitioner at trial the thrust of which is that a fair trial cannot be secured herein if he were to proceed to trial wearing clerical garb because of the likelihood that prejudice, either favorable or unfavorable, in the minds of the potential jurors would override their ability to be objective and impartial, and cites as authority for his posture the 1976 case decision, which upheld the prohibition by the trial judge in that case against petitioner’s appearance at trial wearing clerical garb while representing the defendant.
A Kings Criminal Lawyer said that, the previous adjudication by the Court of Appeals of this state of the identical issue presented to this court arose through the vehicle of an Article 78 C.P.L.R. proceeding brought by petitioner to prohibit a Criminal Court judge from ordering him to remove his clerical collar prior to continuing as defense counsel in the trial of an action in Kings County Criminal Court. The issue reached the Court of Appeals pursuant to C.P.L.R., Section 5601(a) i & ii, (b), appealing an order and judgment of the Appellate Division, Second Department, dismissing the petition of petitioner-appellant.
There, the Court of Appeals ruled that the remedy of prohibition under C.P.L.R. Article 78 was available to petitioner in seeking to restrain a Criminal Court judge from enforcing his direction to petitioner to remove his clerical collar before appearing as defense counsel in a criminal jury trial. The court further ruled that the trial court properly exercised its right to control behavior in the courtroom by the trial court’s direction that petitioner change his clerical garb since there was a risk that a fair trial could not be had. The basic reason for the ruling by the court was its finding that jurors might view a clergyman’s statements differently from those of others, or might subject the defendant to religious prejudice.
A Kings Marijuana Possession Lawyer said that, petitioner argues that his right to freely exercise his religion under the First Amendment to the Constitution of the United States would be violated if he were forced to remove his clerical garb as a condition for the granting of permission to try the case before a jury or if he were forced to abandon his client by substitution of another Legal Aid Society attorney to represent the defendant for whom he presently appears as counsel.
Petitioner further argues that requiring him to remove his clerical collar in the courtroom denies him the equal protection of the law because, since his personal commitment to his religious calling is irrevocable (the wearing of clerical garb forming part and parcel of such commitment) and, indeed, constitutionally protected, the proscription of clerical garb in the courtroom in effect denies him the right to seek his livelihood and source of income by denying him access to the very arena in which he sought to center his professional activity and which was granted to him by the licensing requirements of New York State. Petitioner has outlined and submitted the explicit direction of his superiors requiring him to wear his collar under the Canon Law of the Roman Catholic Church, citing Canon 136 of the Universal Code, as to which the Baltimore Council, interpreting such Canon, stated that the mandate ordains that in a public forum the ordained cleric Must wear his Roman collar. Furthermore, he cites a recent pronouncement of Pope John Paul II that a priest is a unique person and that such uniqueness must be manifested in his dress, I. e., by wearing his priestly collar. Petitioner, therefore, seeks from this court a ruling De novo on the issue as to whether his wearing clerical garb would prevent a fair trial of the indictment herein.
The issue in this case is whether petitioner should be allowed to continue to wear his clerical collar while representing defendant, as her attorney, upon the trial of an indictment charging defendant with Criminal Sale of Marijuana in the Third Degree and Criminal Possession of Marijuana in the Third Degree.
While it would be facile for the court to rely on Stare decisis and peremptorily deny the relief sought herein, it would be a blatant denial of the function of the judicial process to view each case with a clear eye and an open mind. Over four years have passed since the ruling of the New York Court of Appeals, and the world has turned over many, many times. Clearly, the public mind has been exposed even further to the foibles and follies of prejudice during this lapse of time, and even the most fixed prejudices of most citizens have been subject to the dissection of the innate irrationalities of such prejudices. While we are light-years away from the eradication of prejudice, it is to be hoped that some progress has been made in this direction. Moreover, the Court of Appeals itself, in the recent case urges just such a view, stating in a per curiam opinion:
“(1) the doctrine of Stare decisis does not, of course, demand unyielding resignation to even recent precedent. Policy considerations are inherent in the prudent, considered application of the doctrine. Whether it is appropriate for the courts to overturn judicial precedent must depend on several factors. Among them will be the nature of the rights and interests at stake and the extent and degree to which action may justifiably have been taken in reliance on the precedent. In addition to such familiar considerations but apart therefrom, weight may properly be attached to the relative ease or difficulty of modification or change in the precedent. Invitations to judicial reconsideration carry more weight when addressed to constitutional issues because of the very great difficulty of effecting change by constitutional amendment.”
In addition, the Supreme Court of the United States has considered the question of “freedom of expression” since the ruling in the above-mentioned case, which this court views as affecting the decision of the Court of Appeals.
This court is not concerned in the instant matter with the establishment of a religion and will restrict itself to the question of what limits may be placed upon the freedom of exercise of religion as it may affect the present application. The prohibition against laws inhibiting the free exercise of religion was first made applicable to the states through the due process clause of the Fourteenth Amendment to the Constitution of the United States.
In addition, this court questions the ability of a judge to make an objective determination that favorable or unfavorable bias or prejudice affecting an attorney dressed in clerical garb would prevent a juror from fairly appraising the issues on trial. Certainly, jurors have been selected in myriad cases wherein they have expressed a leaning or innate bias in a case but have still insisted they can compartmentalized such leanings and separate them from their function as triers of the facts. A traditional Voir dire is flexible enough to determine whether such dichotomy between a juror’s bias and his ability to function as a fair and impartial juror, in spite of such bias, exists.
Petitioner has demonstrated to this court’s satisfaction that the ruling that he may not wear his clerical collar at trial has resulted in a substantial burden on his free exercise of religion. The Reverend has produced the directives of his superiors in his church hierarchy requiring him to wear the priestly raiment. His own intense desire to display his religious calling is almost palpable and not of such a nature as to be merely a personal vanity. The belief that the wearing of the clerical collar in the public forum, this court is satisfied, pervades his daily life. The systematic wearing of his priestly clothing has been a part of his existence for a substantial period of years. Petitioner’s belief in the necessity of wearing his distinctive apparel is tied to the principles and literature of his church. To find that requiring petitioner to remove his clerical garb while appearing as an attorney at trial is merely an incidental burden upon his religious belief would be to minimize a shared belief with literally thousands and thousands of his co-religionists.
The Reverend urges upon the court that he has been denied equal protection of the law. He avers that the Appellate Division of the Second Department and the Court of Appeals of New York have classified him as an attorney who cannot engage in representing his clients in the conduct of a trial due to his wearing of clerical garb. As stated above, he argues that prior rulings affecting his freedom to practice his profession as an attorney deny him the right to seek his livelihood and source of income by preventing him from representing a client at trial in behalf of his employer, the Legal Aid Society. He further argues that he is totally prohibited by the prior rulings from representing clients at trial even were he to enter private practice. He points out that he attended law school, sat for the bar examination, was interviewed by and passed the requirements of the Committee on Character and Fitness, and was admitted to the Bar in New York, all while wearing his clerical garb. At no point was he ever advised that his clerical attire would prevent him from exercising the privileges and rights of an attorney duly admitted to the practice of law in all spheres and areas of activity.
The prosecutor, on the other hand, argues the doctrine of separation of church and state and that petitioner, when he chose to become an attorney, knew there would be a “conflict” concerning his attire. The court finds this argument untenable and without merit.
Petitioner herein argues that the rulings of the Appellate Division and the Court of Appeals treat him dissimilarly from every other attorney admitted to practice in New York State and thereby deny him equal protection. His posture is that those rulings stigmatize him as an attorney with severely limited privileges and rights even though he has met and satisfied, to the state’s satisfaction, all the prerequisites and qualifications to be licensed as an attorney in the State of New York. He cites as the sole reason for such classification his exercise of his First Amendment right to the free exercise of his religion.
The prosecutor has failed to demonstrate wherein the ruling in the said case promotes an overriding or compelling interest of the state which justifies such burdening of petitioner, when there is available a traditional and viable alternative, I. e., a properly conducted Voir dire of a jury panel, which would eliminate the burden presently constructed by such rulings.
This court, therefore, concludes as follows: (1) That an in-depth and searching Voir dire of the members of a jury panel is the traditional and proper vehicle to seek out and eliminate potential bias or prejudice, as it may affect the passage of a fair trial wherein one of the attorneys appears wearing clerical garb; and (2) That to continue to burden petitioner’s freedom of the exercise of his religion by limiting his rights and privileges as a duly admitted and licensed attorney is violative of his Fourteenth Amendment guarantee of the equal protection of the laws.
Accordingly, the court held that, the application of petitioner to wear his clerical garb is granted.
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