There's a time and a place for the Pledge of Allegiance and it's not in the courtroom, according to a local lawyer.
A 55-year-old criminal defense lawyer from Chico, Calif., William Mayo, confirmed
he has filed complaints with the state's Commission on Judicial Performance
against two rural judges who allegedly lead Pledge recitations in their courtrooms
at the start of each day.
The complaints accuse Butte County Superior Court Judge Stephen Benson and
Tehama County Superior Court Judge John Garaventa of violating judicial neutrality
by improperly forcing their own religious and political beliefs upon everyone
in their courtrooms, including criminal defendants. Mayo takes particular
exception to the phrase "one nation under God" in the 31-word Pledge.
"For those who do not share the judges' religious belief that there exists
a God -- and who wish to instill and maintain non-monotheistic values in
their lives -- this intrudes into their right to be free of a government-sponsored
religion," Mayo wrote in complaints to the CJP and California Chief Justice
Ronald George.
"It is also a clear facial First Amendment violation that contravenes every
Establishment Clause principle that the U.S. Supreme Court has ever enunciated."
Mayo's complaints ask that the CJP issue a cease-and-desist order and require
the judges to forgo their "daily religious and political indoctrination"
of those in court.
Mayo has also filed motions in both courts, demanding that Benson and Garaventa
"dispense with leading the defendants, defense counsel and others in attendance
in a recitation of the Pledge of Allegiance." The hearing before Benson is
set for Sept. 14, while the one in front of Garaventa is scheduled for Sept.
15.
The 58-year-old Benson, who was elected to the bench in 2000, couldn't be
reached on Tuesday, and Garaventa, a 53-year-old appointed in 1998 by then-Gov.
Pete Wilson, declined comment.
However, Dennis Murray, the presiding judge in Tehama County Superior Court
to whom Mayo also complained, said he didn't think it was against the law
for a judge to lead the Pledge in a courtroom, and thought the propriety
of doing so is something that "reasonable minds can differ about."
"It's not a practice I engage in," he said, "but that doesn't mean there's anything wrong with it."
Butte County Superior Court Presiding Judge Barbara Roberts couldn't be reached.
Benson's courtroom in Oroville is about 60 miles southeast of Garaventa's
in Red Bluff, and Mayo -- owner of the Mayo Law Clinic, which specializes
in defending clients against criminal and administrative charges -- said
Tuesday that the Pledge routine is similar in both.
"The way it works," he said, "is the judge appears in court, the bailiff
advises everybody in the audience to rise and salute the flag, and engages
in the Pledge of Allegiance. We're being compelled to pledge our allegiance
to the government, and I don't think that's a subtle indoctrination."
In his complaint to the CJP, Mayo argues that the judges' recitation is "coercively
compelling" a criminal defendant to "confess his sins before God and country"
and, thereby, prejudicing his case.
Mayo's complaints contend that the Pledge in a courtroom is so coercive that
it could "give rise to a veritable constitutional challenge to every guilty
(or no contest) plea" heard by Benson and Garaventa.
"Simply put," Mayo wrote, "state-sponsored religion in a courtroom is absolutely
prohibited and neither the fact that the prayer may be denominationally neutral
nor the fact that its observance on the part of the defendant attendees is
questionably voluntary (although, we think not), can serve to free it from
the limitations of the Establishment Clause."
Victoria Henley, the CJP's director and chief counsel, couldn't confirm the
filing of Mayo's complaints because cases aren't public unless formal charges
are filed. But she said she wasn't aware of any complaint ever being filed
before regarding a judge's recitation of the Pledge of Allegiance.
San Francisco lawyer Jonathan Arons, an expert on ethics, said Mayo's complaints
would be stronger if he pointed to some judicial canon that the judges were
violating. But even without that, he said, there is something to be said
about the apparently coercive nature of the judges' recitations.
"Here people are ordered [to participate]," he said, "so there may well be
something to the fact that the coercive nature of it -- and the appearance
of bias if you will -- may certainly be present.
"What if you don't stand? Is the judge going to hold it against you?"
Mayo said Tuesday that he has no particular religious or atheistic leanings,
but was baptized, confirmed and once married in a Christian church. He also
said he has no general personal feelings about the Pledge of Allegiance,
but definitely finds its recitation in a courtroom by a sitting judge "particularly
troublesome."
Mayo also said he's not worried about any consequences stemming from challenging the judges.
"In situations of law or matters of truth," he said, "I have determined it
is far better to stand one's ground and, at the same time, possibly incur
the wrath of an irate judge than it is to get on bended knee and succumb
to the wishes of those wielding power -- judicial or otherwise."
from Law.com
Lawyer Lobs Complaints at Bench-Led Pledge
Wednesday August 25, 2:58 am ET
Mike McKee, The Recorder
*******************
CHICO, Calif. (AP) - A Butte County judge said he would continue reciting
the Pledge of Allegiance in his courtroom, despite a challenge from a Chico
lawyer.
Superior Court Judge Stephen Benson released an 11-page opinion Tuesday defending
his right to open each court session by turning to the flag and reciting
the pledge. Because it's not required, he said the daily ceremony doesn't
violate anyone's rights.
"The power to conduct such a ceremony is within the province of every judge," Benson wrote.
Chico attorney William Mayo had complained that the phrase "one nation under
God" violated the constitutional separation of church and state.
The challenge comes three months after the U.S. Supreme Court tossed out
a challenge to the pledge by a Sacramento atheist who claimed his rights
were violated when his daughter was exposed to the pledge each morning. The
court did not rule on the constitutionality question because it said the
father didn't have standing in the court because of a custody dispute.
Mayo said he would probably file a federal civil rights suit to stop Benson
and Tehama County Superior Court Judge John Garaventa from leading their
courtrooms in the pledge. Mayo was scheduled to argue a similar case Wednesday
before Garaventa.
Mayo said that leading the court in an "allegiance to God and country" strained
"judicial neutrality." He also said those who chose not to participate might
appear to be protesters in the eyes of the judge or jurors.
On Tuesday, Mayo and one other man did not recite the pledge as the judge led dozens of accused drunken drivers in the ritual.
******************
Superior Court Judge Stephen Benson