G.R. No.

L-5671 August 24, 1910

BENITO DE LOS REYES,

plaintiff-appellant,vs.
VERONICA ALOJADO,
defendant-appellee.
Ramon Diokno, for appellant. No appearance for appellee.

TORRES,
J.:
On or about January 22, 1905, Veronica Alojado received, as a loan, from Benito de
los Reyes thatthe sum P67 .60, for the purpose of paying a debt she owed to
Olimpia Zaballa. It was
agreed between Alojado and Reyes that the debtor should remain as a servant in th
e house and in theservice of her creditor, without any renumeration whatever, until
she should find some one whowould furnish her with the said sum where with to
repeat the loan. The defendant, VeronicaAlojado, afterwards left the house of the
plaintiff, on March 12, 1906, without having paid himher debt, nor did she do so at
any subsequent date, notwithstanding his demands. The plaintiff,therefore, on the
15th of march, 1906, filed suit in the court of the justice of the peace of SantaRosa,
La Laguna, against Veronica Alojado to recover the said sum or, in a contrary case,
tocompel her to return to his service. The trial having been had, the justice of the
peace, on April 14,1906, rendered judgment whereby he sentenced the defendant
to pay to the plaintiff the sumclaimed and declared that, in case the debtor should
be insolvent, she should be obliged to fulfillthe agreement between her and the
plaintiff. The costs of the trial were assessed against thedefendant.The defendant
appealed from the said judgment to the Court of First Instance to which the
plaintiff,after the case had been docketed by the clerk of court, made a motion on
May 4, 1906, requestingthat the appeal interposed by the defendant be disallowed,
with the costs of both instances againsther. The grounds alleged in support of this
motion. were that the appeal had been filed on the sixthday following that when
judgment was rendered in the trial, on April 14th, and that it, therefore,did not come
within the period of the five days prescribed by section 76 of the Code of
CivilProcedure, as proven by the certificate issued by the justice of the peace of
Santa Rosa. The Courtof First Instance, however, by order of July 16, 1906, overruled
the motion of the plaintiff-appellee,for the reasons therein stated, namely, that the
defendant was not notified of the judgment renderedin the case on April 14th of
that year until the 16th of the same month, and the appeal having beenfiled four
days later, on the 20th, it could having seen that the five days specified by section
76 ofthe Code of Civil Procedure had not expired. The plaintiff was advised to
reproduce his complaintwithin ten days, in order that due procedure might he had
thereupon.The plaintiff took exception to the aforementioned order and at the same
time reproduced thecomplaint he had filed in the court of the justice of the peace, in
which, after relating to the factshereinbefore stated, added that the defendant,
besides the sum above-mentioned, had also receivedfrom the plaintiff, under the
same conditions, various small amounts between the dates of January
22, 1905, and March 10, 1906, aggregating altogether P11.97, and that they had
not been repaidto him. He therefore asked that judgment be rendered sentencing
the defendant to comply with thesaid contract and to pay to the plaintiff the sums
referred to, amounting in all to P79.57, and thatuntil this amount should have been
in paid, the defendant should remain gratuitously in the serviceof plaintiff's
household, and that she should pay the costs of the trial.The defendant, in her
written answer of August 15, 1906, to the aforesaid complaint, denied
theallegations contained in paragraphs 1 and 2 of the complaint and alleged that,
although she hadleft the plaintiff's service, it was because the latter had paid her no
sum whatever for the servicesshe had rendered in his house. The defendant
likewise denied the conditions expressed in paragraph 4 of the complaint, averring
that the effects purchased, to the amount of P11.97, werein the possession of the
plaintiff, who refused to deliver them to her. She therefore asked that she be
absolved from the complaint and that the plaintiff be absolved from the
complaint the wagesdue her for the services she had rendered.The case came to
trial on October 19, 1906, and, after the production of testimony by both parties,the
judge, on November 21st of the same year, rendered judgment absolving the
defendant fromthe complain, with the costs against the plaintiff, and sentencing the
latter to pay to the former thesum of P2.43, the balance found to exist between the
defendant's debt of P79.57 and the wagesdue her by the plaintiff, which amounted
to P82. The plaintiff, on the 6th of December, filed awritten exception to the
judgment aforesaid through the regular channels, and moved for a newtrial on the
ground that the findings of fact set forth in the judgment were manifestly contrary
tothe weight of the evidence. This motion was overruled on the 17th of the same
month, to whichexception was taken by the appellant, who afterwards filed the
proper bill of exceptions, whichwas approved, certified, and forwarded to the clerk
of this court.The present suit, initiated in a justice of the peace court and appealed
to the Court of First Instanceof La Laguna at a time prior to the enactment of Act No.
1627, which went into effect on July 1,1907, which limited to two instances the
procedure to be observed in verbal actions, concerns thecollection of certain sum
received as a loan by the defendant from the plaintiff, and of the wagesearned by
the former for services rendered as a servant in the said plaintiff's
house. Notwithstanding the denial of the defendant, it is a fact clearly proven, as
found in the judgmentappealed from, that the plaintiff did deliver to Hermenegildo
de los Santos the sum of P67.60 to pay a debt was paid by De los Santos with the
knowledge and in behalf of the said defendant who,of her free will, entered the
service of the plaintiff and promised to pay him as soon as she shouldfind the
money wherewith to do so.The duty to pay the said sum, as well as that of P11.97
delivered to the defendant in small amountsduring the time that she was in the
plaintiff's house, is unquestionable, inasmuch as it is a positivedebt demandable of
the defendant by her creditor. (Arts. 1754, 1170, Civil Code.) However, thereason
alleged by the plaintiff as a basis for the loan is untenable, to wit, that the
defendant wasobliged to render service in his house as a servant without
remuneration whatever and to remaintherein so long as she had not paid her debt,
inasmuch as this condition is contrary to law andmorality. (Art. 1255, Civil Code.)

PT&T vs NLRC
PT&T vs. NLRC
272 SCRA 596

FACTS:

PT&T (Philippine Telegraph & Telephone Company) initially hired Grace de Guzman
specifically as Supernumerary Project Worker, for a fixed period from November 21,
1990 until April 20, 1991 as reliever for C.F. Tenorio who went on maternity leave. She
was again invited for employment as replacement of Erlina F. Dizon who went on leave
on 2 periods, from June 10, 1991 to July 1, 1991 and July 19, 1991 to August 8, 1991.

On September 2, 1991, de Guzman was again asked to join PT&T as a probationary

employee where probationary period will cover 150 days. She indicated in the portion
of the job application form under civil status that she was single although she had
contracted marriage a few months earlier. When petitioner learned later about the
marriage, its branch supervisor, Delia M. Oficial, sent de Guzman a memorandum
requiring her to explain the discrepancy. Included in the memorandum, was a reminder
about the companys policy of not accepting married women for employment. She was
dismissed from the company effective January 29, 1992. Labor Arbiter handed down
decision on November 23, 1993 declaring that petitioner illegally dismissed De Guzman,
who had already gained the status of a regular employee. Furthermore, it was
apparent that she had been discriminated on account of her having contracted
marriage in violation of company policies.

ISSUE: Whether the alleged concealment of civil status can be grounds to terminate
the services of an employee.

HELD:

Article 136 of the Labor Code, one of the protective laws for women, explicitly
prohibits discrimination merely by reason of marriage of a female employee. It is
recognized that company is free to regulate manpower and employment from hiring to
firing, according to their discretion and best business judgment, except in those cases
of unlawful discrimination or those provided by law.

PT&Ts policy of not accepting or disqualifying from work any woman worker who
contracts marriage is afoul of the right against discrimination provided to all women
workers by our labor laws and by our Constitution. The record discloses clearly that
de Guzmans ties with PT&T were dissolved principally because of the companys policy
that married women are not qualified for employment in the company, and not merely
because of her supposed acts of dishonesty.

The government abhors any stipulation or policy in the nature adopted by PT&T. As
stated in the labor code:

ART. 136. Stipulation against marriage. It shall be unlawful for an employer to

require as a condition of employment or continuation of employment that a woman shall
not get married, or to stipulate expressly or tacitly that upon getting married, a
woman employee shall be deemed resigned or separated, or to actually dismiss,
discharge, discriminate or otherwise prejudice a woman employee merely by reason of
marriage.

The policy of PT&T is in derogation of the provisions stated in Art.136 of the Labor
Code on the right of a woman to be free from any kind of stipulation against marriage
in connection with her employment and it likewise is contrary to good morals and public
policy, depriving a woman of her freedom to choose her status, a privilege that is
inherent in an individual as an intangible and inalienable right. The kind of policy
followed by PT&T strikes at the very essence, ideals and purpose of marriage as an
inviolable social institution and ultimately, family as the foundation of the nation. Such
policy must be prohibited in all its indirect, disguised or dissembled forms as
discriminatory conduct derogatory of the laws of the land not only for order but also
imperatively required.

G.R. No. 106341 September 2, 1994

DELFIN G. VILLARAMA, petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION AND GOLDEN DONUTS, INC., respondents.

Rogelio R. Udarbe for petitioner.

Armando V. Ampil for private respondent.

PUNO, J.:

Sexual harassment abounds in all sick societies. It is reprehensible enough but more so when
inflicted by those with moral ascendancy over their victims. We rule that it is a valid cause for
separation from service.

First, the facts. On November 16, 1987, petitioner DELFIN VILLARAMA was employed by private
respondent GOLDEN DONUTS, INC., as its Materials Manager. His starting salary was P6,500.00
per month, later increased to P8,500.00.

On July 15, 1989, petitioner Villarama was charged with sexual harassment by Divina Gonzaga, a
clerk-typist assigned in his department. The humiliating experience compelled her to resign from
work. Her letter-resignation, dated July 15, 1989, reads:

MR. LEOPOLDO H. PRIETO

President
Golden Donuts, Inc.

Dear Sir:

I would like to tender my resignation from my post as Clerk Typist of Materials

Department effective immediately.

It is really my regret to leave this company which has given me all the opportunity I
long desired. My five (5) months stay in the company have been very gratifying
professionally and financially and I would not entertain the idea of resigning except
for the most shocking experience I have had in my whole life.

Last Friday, July 7, 1989, Mr. Delfin Villarama and Mr. Jess de Jesus invited all the
girls of Materials Department for a dinner when in (sic) the last minute the other three
(3) girls decided not to join the groupp anymore. I do (sic) not have second
thought(s) in accepting their invitation for they are my colle(a)gues and I had nothing
in mind that would in any manner prompt me to refuse to what appeared to me as a
simple and cordial invitation. We went to a restaurant along Makati Avenue where we
ate our dinner. Mr. Villarama, Mr. Olaybar and Mr. Jess de Jesus were drinking while
we were eating and (they) even offered me a few drinks and when we were finished,
they decided to bring me home. While on my way, I found out that Mr. Villarama was
not driving the way to my house.I was wondering why we were taking the wrong way
until I found out that we were entering a motel. I was really shock(ed). I did not
expect that a somewhat reputable person like Mr. Villarama could do such a thing to
any of his subordinates. I should have left the company without any word but I feel
that I would be unfair to those who might be similarly situated. I hope that you would
find time to investigate the veracity of my allegations and make each (sic)
responsible for is own deed. (emphasis ours)

Thank you very much and more power.

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The letter prompted Mr. Leopoldo Prieto, President of Golden Donuts, Inc., to call petitioner to a
meeting on August 4, 1989. Petitioner was then required to explain the letter against him. It appears
that petitioner agreed to tender his resignation. Private respondent moved swiftly to separate
petitioner. Thus, private respondent approved petitioner's application for leave of absence with pay
from August 5-28, 1989. It also issued an inter-office memorandum, dated August 4, 1989, advising
"all concerned" that petitioner was no longer connected with the company effective August 5,
1989. 1 Two (2) days later, or on August 7, 1989, Mr. Prieto sent a letter to petitioner confirming their
agreement that petitioner would be officially separated from the private respondent. The letter reads:

Dear Mr. Villarama:

This is to officially confirm our discussion last Friday, August 4, 1989, regarding your
employment with us. As per our agreement, you will be officially separated from the
company effective August 23, 1989.

May I, therefore, request you to please submit or send us your resignation letter on
or before the close of business hours of August 22, 1989.

Please see the Personnel & Industrial Relations Office for your clearance.

Very truly yours,

(SGD). LEOPOLDO H.
PRIETO, JR.
President

In the interim, petitioner had a change of mind. In a letter dated August 16, 1989, petitioner sought
reconsideration of the management's decision to terminate him, viz.:

DEAR SIR:

MAY I REQUEST FOR A RECONSIDERATION ON THE DECISION HANDED

DURING OUR MEETING OF AUGUST 4, 1989, TERMINATING MY SERVICES
WITH THE COMPANY EFFECTIVE AUGUST 5, 1989.

THE SIGNIFICANT CONTRIBUTION OF THE MATERIALS DEPARTMENT, WHICH

I HAD BEEN HEADING FOR THE PAST 21 MONTHS, TO THE PERFORMANCE
 OF THE COMPANY FAR OUTWEIGHS THE ERROR THAT I HAD COMMITTED. AN
ERROR THAT MUST NOT BE A BASIS FOR SUCH A DRASTIC DECISION.

AS I AM STILL OFFICIALLY ON LEAVE UNTIL THE 29th, OF THIS MONTH, MAY I

EXPECT THAT I WILL RESUME MY REGULAR DUTY ON THE 29th?

ANTICIPATING YOUR FAVORABLE REPLY.

VERY TRULY YOURS,

(SGD.) DELFIN G.
VILLARAMA

For his failure to tender his resignation, petitioner was dismissed by private respondent on August
23, 1989. Feeling aggrieved, petitioner filed an illegal dismissal case 2 against private respondent.

In a decision dated January 23, 1991, Labor Arbiter Salimar V. Nambi held that due process was not
observed in the dismissal of petitioner and there was no valid cause for dismissal. Private
respondent GOLDEN DONUTS, INC. was ordered to: (1) reinstate petitiner DELFIN G. VILLARAMA
to his former position, without loss of seniority rights, and pay his backwages at the rate of
P8,500.00 per month from August 1989, until actual reinstatement; (2) pay petitioner the amount of
P24,866.66, representing his unused vacation leave and proportionate 13th month pay; (3) pay
petitioner P100,000.00, as moral damages, and P20,000.00, as exemplary damages; and (3) pay
the attorney's fees equivalent to ten percent of the entire monetary award.

Private respondent appealed to the National Labor Relations Commission. On July 16, 1992, public
respondent reversed the decision of the labor arbiter. The dispositive portion of its Resolution reads:

WHEREFORE, premises considered, the decision appealed from is hereby set aside
and a new one entered declaring the cause of dismissal of complainant as valid;
however, for the procedural lapses, respondent (Golden Donuts, Inc.) is hereby
ordered to indemnify complainant (petitioner) in the form of separation pay equivalent
to two month's (sic) pay (for his two years of service, as appears (sic) in the records),
or the amount of P17,000.00.

SO ORDERED.

Hence, this petition where the following arguments are raised:

THE ALLEGED IMMORALITY CHARGED AGAINST PETITIONER IS NOT

SUPPORTED BY SUBSTANTIAL EVIDENCE ON RECORD.

THE MERE ADMISSION OF THE VIOLATION OF DUE PROCESS ENTITLES

PETITIONER TO REINSTATEMENT.

IN ANY EVENT, PETITIONER IS ENTITLED TO HIS SALARIES FROM RECEIPT

BY PRIVATE RESPONDENT OF THE DECISION OF THE LABOR ARBITER ON 4
FEBRUARY 1991 TO (sic) AT LEAST THE PROMULGATION OF THE ASSAILED
RESOLUTION ON (sic) 16 JULY 1992.

IN ANY EVENT, PETITIONER IS ALSO ENTITLED TO HIS UNUSED VACATION

LEAVE AND PROPORTIONATE 13TH MONTH PAY IN THE TOTAL AMOUNT OF
P24,866.66, ADJUDGED BY THE LABOR ARBITER.

THE AWARD OF MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES

BY THE LABOR ARBITER IS JUSTIFIED.

We affirm with modification the impugned Resolution.

At the outset, we note that the Petition was not accompanied by a certified true copy of the assailed
July 16, 1992 NLRC Resolution, 3 in violation of Revised Circular No. 1-88. Neither was there any
certification under oath that "petitioner has not commenced any other action or proceeding involving the
same issues in the Supreme Court, the Court of Appeals or different Divisions thereof, or any other
tribunal or agency, and that to the best of his knowledge, no such action or proceeding is pending in the
Supreme Court, the Court of Appeals, or different Divisions thereof or any other tribunal or agency," as
required under Circular No. 28-91. It is settled that non-compliance with the provisions of Revised Circular
No. 1-88 and Circular No. 28-91, would result in the outright dismissal of the petition. 4

In addition, under Rule 65 of the Revised Rules of Court, the special civil action for certiorari is
available in cases where the concerned "tribunal, board or officer exercising judicial functions had
acted without or in excess of its jurisdiction, or with grave abuse of discretion and there is no appeal,
nor any plain, speedy, and adequate remedy in the ordinary course of law." In Antonio v. National
Labor Relations Commission, 5 we held that the plain and adequate remedy expressly provided by law is
a motion for reconsideration of the assailed decision, and the resolution thereof, which is not only
expected to be but would actually have provided adequate and more speedy remedy than a petition
for certiorari. The rationale for this requirement is to enable the court or agency concerned to pass upon
and correct its mistakes without the intervention of a higher court. 6 In this case, the assailed July 16,
1992 Resolution of the National Labor Relations Commission was received by petitioner's counsel on July
23, 1992. 7 Petitioner did not file a motion for reconsideration, instead, he commenced this special civil
action for certiorari. Be that as it may, we allowed the petition to enable us to rule on the significant issues
raised before us, viz.: (1) whether or not petitioner's right to procedural due process was violated, and (2)
whether or not he was dismissed for a valid or just cause.

The procedure for terminating an employee is found in Article 277 (b) of the Labor Code, viz.:

xxx xxx xxx

(b) Subject to the constitutional right of workers to security of tenure and their right to
be protected against dismissal except for a just and authorized cause and without
prejudice to the requirement of notice under Article 283 of this Code the employer
shall furnish the worker whose employment is sought to be terminated a written
notice containing a statement of the causes for termination and shall afford the
latter ample opportunity to be heard and to defend himself with the assistance of his
counsel if he so desires in accordance with company rules and regulations
promulgated pursuant to guidelines set by the Department of Labor and
Employment. Any decision taken by the employer shall be without prejudice to the
right of the worker to contest the validity or legality of his dismissal by filing a
complaint with the regional branch of the National Labor Relations Commission. The
burden of proving that the termination was for a valid or authorized cause shall rest
on the employer. . . . (emphasis supplied)

This procedure protects not only rank-and-file employees but also managerial employees. Both have
the right to security of tenure as provided for in Section 3, Article XIII of the 1987 Constitution. In the
case at bench, petitioner decided to seek reconsideration of the termination of his service thru his
August 16, 1989 letter. While admitting his error, he felt that its gravity did not justify his dismissal.
Considering this stance, and in conformity with the aforequoted Article 277 (b) of the Labor Code,
petitioner should have been formally charged and given an opportunity to refute the charges. Under
the facts in field, we hold that petitioner was denied procedural due process.

We now come to the more important issue of whether there was valid cause to terminate petitioner.

Petitioner claims that his alleged immoral act was unsubstantiated, hence, he could not be
dismissed. We hold otherwise. The records show that petitioner was confronted with the charge
against him. Initially, he voluntarily agreed to be separated from the company. He took a leave of
absence preparatory to this separation. This agreement was confirmed by the letter to him by Mr.
Prieto dated August 7, 1989. A few days after, petitioner reneged on the agreement. He refused to
be terminated on the ground that the seriousness of his offense would not warrant his separation
from service. So he alleged in his letter to Mr. Prieto dated August 16, 1989. But even in this letter,
petitioner admitted his "error" vis-a-vis Miss Gonzaga. As a manager, petitioner should know the
evidentiary value of his admissions. Needless to stress, he cannot complain there was no valid
cause for his separation.

Moreover, loss of trust and confidence is a good ground for dismissing a managerial employee. It
can be proved by substantial evidence which is present in the case at bench. As further observed by
the Solicitor General:
 . . . assuming arguendo that De Jesus and Gonzaga were sweethearts and that
petitioner merely acceded to the request of the former to drop them in the motel,
petitioner acted in collusion with the immoral designs of De Jesus and did not give
due regard to Gonzaga's feeling on the matter and acted in chauvinistic disdain of
her honor, thereby justifying public respondent's finding of sexual harassment. Thus,
petitioner not only failed to act accordingly as a good father of the family because he
was not able to maintain his moral ascendancy and authority over the group in the
matter of morality and discipline of his subordinates, but he actively facilitated the
commission of immoral conduct of his subordinates by driving his car into the motel.

(Comment, April 29, 1993, p. 9)

As a managerial employee, petitioner is bound by a more exacting work ethics. He failed to

live up to this higher standard of responsibility when he succumbed to his moral perversity.
And when such moral perversity is perpetrated against his subordinate, he provides
justifiable ground for his dismissal for lack of trust and confidence. It is the right, nay, the duty
of every employer to protect its employees from over sexed superiors.

To be sure, employers are given wider latitude of discretion in terminating the employment of
managerial employees on the ground of lack of trust and confidence. 8

We next rule on the monetary awards due to petitioner. The public respondent erred in awarding
separation pay of P17,000.00 as indemnity for his dismissal without due process of law. The award
of separation pay is proper in the cases enumerated under Articles 283 and 284 of the Labor
Code, 9 and in cases where there is illegal dismissal (for lack of valid cause) and reinstatement is no
longer feasible. But this is not to state that an employer cannot be penalized for failure to give formal
notice and conduct the necessary investigation before dismissing an employee. 10 Thus, in Wenphil
vs.NLRC 11 and Pacific Mills, Inc. vs. Alonzo, 12 this Court awarded P1,000.00 as penalty for non-
observance of due process.

Petitioner is not also entitled to moral and exemplary damages. There was no bad faith or malice on
the part of private respondent in terminating the services of petitioner. 13

Petitioner is entitled, however, to his unused vacation/sick leave and proportionate 13th month pay,
as held by the labor arbiter. These are monies already earned by petitioner and should be unaffected
by his separation from the service.

WHEREFORE, premises considered, the assailed resolution of public respondent is hereby

AFFIRMED WITH MODIFICATION that the award of separation pay is DELETED. Private
respondent is ordered to pay petitioner the amount of P1,000.00 for non-observance of due process,
and the equivalent amount of his unused vacation/sick leave and proportionate 13th month pay. No
pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, J.J., concur

AdongvsCheongSengGee,G.R.No.18081,March3,1922
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 18081 March 3, 1922

IN THE MATTER OF THE ESTATE OF CHEONG BOO, deceased.

MORA ADONG, petitioner-appellant,
vs.
CHEONG SENG GEE, opponent-appellant.
Kincaid, Perkins & Kincaid and P. J. Moore for petitioner-appellant.
Carlos A. Sobral for opponent-appellant.

MALCOLM, J.:

The two question presented for determination by these appeals may be framed as follows: Is a marriage
contracted in China and proven mainly by an alleged matrimonial letter, valid in the Philippines? Are the
marriage performed in the Philippines according to the rites of the Mohammedan religion valid? As the
decision of the Supreme Court on the last point will affect marriages consummated by not less than one
hundred and fifty thousand Moros who profess the Mohammedan faith, the transcendental importance of
the cause can be realized. We proposed to give to the subject the serious consideration which it
deserves.

Cheong Boo, a native of China, died intestate in Zamboanga, Philippine Islands, on August 5, 1919. He
left property worth nearly P100,000. The estate of the deceased was claimed, on the one hand, by
Cheong Seng Gee, who alleged that he was a legitimate child by a marriage contracted by Cheong Boo
with Tan Dit in China in 1895. The estate was claimed, on the other hand, by the Mora Adong who alleged
that she had been lawfully married to Cheong Boo in 1896 in Basilan, Philippine Islands, and her
daughters, Payang, married to Cheng Bian Chay, and Rosalia Cheong Boo, unmarried.

The conflicting claims to the estate of Cheong Boo were ventilated in the Court of First Instance of
Zamboanga. The trial judge, the Honorable Quirico Abeto, after hearing the evidence presented by both
sides, reached the conclusion, with reference to the allegations of Cheong Seng Gee, that the proof did
not sufficiently establish the Chinese marriage, but that because Cheong Seng Gee had been admitted to
the Philippine Islands as the son of the deceased, he should share in the estate as a natural child. With
reference to the allegations of the Mora Adong and her daughters Payang and Rosalia, the trial judge
reached the conclusion that the marriage between the Mora Adong and the deceased had been
adequately proved but that under the laws of the Philippine Islands it could not be held to be a lawful
marriage; accordingly, the daughters Payang and Rosalia would inherit as natural children. The order of
the trial judge, following these conclusions, was that there should be a partition of the property of the
deceased Cheong Boo between the natural children, Cheong Seng Gee, Payang, and Rosalia.

From the judgment of the Judge of First Instance both parties perfected appeals. As to the facts, we can
say that we agree in substance with the findings of the trial court. As to the legal issues submitted for
decision by the numerous assignments of error, these can best be resolved under two heads, namely: (1)
The validity of the Chinese marriage; and (2) the validity of the Mohammedan marriage.

1. Validity of the Chinese Marriage

The theory advanced on behalf of the claimant Cheong Seng Gee was that Cheong Boo was married in
the city of Amoy, China, during the second moon of the twenty-first year of the Emperor Quang Su, or,
according to the modern count, on February 16, 1985, to a young lady named Tan Dit. Witnesses were
presented who testified to having been present at the marriage ceremony. There was also introduced in
evidence a document in Chinese which in translation reads as follows:

One hundred
years of life Your nephew, Tan Chao, respecfully
and health for answers the venerable Chiong Ing,
both. father of the bridegroom, accepting his
offer of marriage, and let this document
serve as proof of the acceptance of said
marriage which is to be celebrated
during the merry season of the flowers.

I take advantage of this occasion to

wish for your and the spouses much
 happiness, a long life, and prolific issue,
as noble and great as that which you
brought forth. I consider the marriage of
your son Boo with my sister Lit Chia as
a mandate of God and I hope that they
treat each other with great love and
mutual courtesy and that both they and
their parents be very happy.

Given during the second moon of the

twenty-first year of the reign of the
Emperor Quang Su.

Cheong Boo is said to have remained in China for one year and four months after his marriage during
which time there was born to him and his wife a child named Cheong Seng Gee. Cheong Boo then left
China for the Philippine Islands and sometime thereafter took to himself a concubine Mora by whom he
had two children. In 1910, Cheong Boo was followed to the Philippines by Cheong Seng Gee who, as
appears from documents presented in evidence, was permitted to land in the Philippine Islands as the
son of Cheong Boo. The deceased, however, never returned to his native hearth and seems never to
have corresponded with his Chinese wife or to have had any further relations with her except once when
he sent her P10.

The trial judge found, as we have said, that the proof did not sustain the allegation of the claimant Cheong
Seng Gee, that Cheong Boo had married in China. His Honor noted a strong inclination on the part of the
Chinese witnesses, especially the brother of Cheong Boo, to protect the interests of the alleged son,
Cheong Seng Gee, by overstepping the limits of truthfulness. His Honor also noted that reliable witnesses
stated that in the year 1895, when Cheong Boo was supposed to have been in China, he was in reality in
Jolo, in the Philippine Islands. We are not disposed to disturb this appreciation of fact by the trial court.
The immigration documents only go to show the relation of parent and child existing between the
deceased Cheong Boo and his son Cheong Seng Gee and do not establish the marriage between the
deceased and the mother of Cheong Seng Gee.

Section IV of the Marriage Law (General Order No. 68) provides that "All marriages contracted without
these Islands, which would be valid by the laws of the country in which the same were contracted, are
valid in these Islands." To establish a valid foreign marriage pursuant to this comity provision, it is first
necessary to prove before the courts of the Islands the existence of the foreign law as a question of fact,
and it is then necessary to prove the alleged foreign marriage by convincing evidence.

As a case directly in point is the leading one of Sy Joc Lieng vs. Encarnacion ([1910]), 16 Phil., 137;
[1913], 228 U.S., 335). Here, the courts of the Philippines and the Supreme Court of the United States
were called upon to decide, as to the conflicting claims to the estate of a Chinese merchant, between the
descendants of an alleged Chinese marriage and the descendants of an alleged Philippine marriage. The
Supreme Courts of the Philippine Islands and the United States united in holding that the Chinese
marriage was not adequately proved. The legal rule was stated by the United States Supreme Court to be
this: A Philippine marriage, followed by forty years of uninterrupted marital life, should not be impugned
and discredited, after the death of the husband and administration of his estate, though an alleged prior
Chinese marriage, "save upon proof so clear, strong, and unequivocal as to produce a moral conviction of
the existence of such impediment." Another case in the same category is that of Son Cui vs. Guepangco
([1912], 22 Phil., 216).

In the case at bar there is no competent testimony as to what the laws of China in the Province of Amoy
concerning marriage were in 1895. As in the Encarnacion case, there is lacking proof so clear, strong, and
unequivocal as to produce a moral conviction of the existence of the alleged prior Chinese marriage.
Substitute twenty-three years for forty years and the two cases are the same.
The lower court allowed the claimant, Cheong Seng Gee, the testamentary rights of an acknowledged
natural child. This finding finds some support in Exhibit 3, the affidavit of Cheong Boo before the American
Vice-Consul at Sandakan, British North Borneo. But we are not called upon to make a pronouncement on
the question, because the oppositor-appellant indicates silent acquiescence by assigning no error.

2. Validity of the Mohammedan Marriage

The biographical data relating to the Philippine odyssey of the Chinaman Cheong Boo is fairly complete.
He appears to have first landed on Philippine soil sometime prior to the year 1896. At least, in the year las
mentioned, we find him in Basilan, Philippine Islands. There he was married to the Mora Adong according
to the ceremonies prescribed by the book on marriage of the Koran, by the Mohammedan Iman (priest)
Habubakar. That a marriage ceremony took place is established by one of the parties to the marriage, the
Mora Adong, by the Iman who solemnized the marriage, and by other eyewitnesses, one of whom was
the father of the bride, and another, the chief of the rancheria, now a municipal councilor. The groom
complied with Quranic law by giving to the bride a dowry of P250 in money and P250 in goods.

The religious rites began with the bride and groom seating themselves in the house of the father of the
bride, Marahadja Sahibil. The Iman read from the Koran. Then the Iman asked the parents if they had any
objection to the marriage. The marital act was consummated by the groom entering the woman's
mosquito net.

From the marriage day until the death of Cheong Boo, twenty-three years later, the Chinaman and the
Mora Adong cohabited as husband and wife. To them were born five children, two of whom, Payang and
Rosalia, are living. Both in his relations with Mora Adong and with third persons during his lifetime,
Cheong Boo treated Adong as his lawful wife. He admitted this relationship in several private and public
documents. Thus, when different legal documents were executed, including decrees of registration,
Cheong Boo stated that he was married to the Mora Adong while as late as 1918, he gave written consent
to the marriage of his minor daughter, Payang.

Notwithstanding the insinuation of counsel for the Chinese appellant that the custom is prevalent among
the Moros to favor in their testimony, a relative or friend, especially when they do not swear on the Koran
to tell the truth, it seems to us that proof could not be more convincing of the fact that a marriage was
contracted by the Chinaman Cheong Boo and the Mora Adong, according to the ceremonies of the
Mohammedan religion.

It is next incumbent upon us to approach the principal question which we announced in the very
beginning of this decision, namely, Are the marriages performed in the Philippines according to the rites of
the Mohammedan religion valid? Three sections of the Marriage Law (General Order No. 68) must be
taken into consideration.

Section V of the Marriage Law provides that "Marriage may be solemnized by either a judge of any court
inferior to the Supreme Court, justice of the peace, or priest or minister of the Gospel of any
denomination . . ." Counsel, failing to take account of the word "priest," and only considering the phrase
"minister of the Gospel of any denomination" would limit the meaning of this clause to ministers of the
Christian religion. We believe this is a strained interpretation. "Priest," according to the lexicographers,
means one especially consecrated to the service of a divinity and considered as the medium through
whom worship, prayer, sacrifice, or other service is to be offered to the being worshipped, and pardon,
blessing, deliverance, etc., obtained by the worshipper, as a priest of Baal or of Jehovah; a Buddhist
priest. "Minister of the Gospel" means all clergymen of every denomination and faith. A "denomination" is
a religious sect having a particular name. (Haggin vs. Haggin [1892], 35 Neb., 375; In re Reinhart, 9 O.
Dec., 441; Hale vs. Everett [1868], 53 N. H. 9.) A Mohammedan Iman is a "priest or minister of the
Gospel," and Mohammedanism is a "denomination," within the meaning of the Marriage Law.

The following section of the Marriage Law, No. VI, provides that "No particular form for the ceremony of
marriage is required, but the parties must declare, in the presence of the person solemnizing the
marriage, that they take each other as husband and wife." The law is quite correct in affirming that no
precise ceremonial is indispensable requisite for the creation of the marriage contract. The two essentials
of a valid marriage are capacity and consent. The latter element may be inferred from the ceremony
performed, the acts of the parties, and habit or repute. In this instance, there is no question of capacity.
Nor do we think there can exist any doubt as to consent. While it is true that during the Mohammedan
ceremony, the remarks of the priest were addressed more to the elders than to the participants, it is
likewise true that the Chinaman and the Mora woman did in fact take each other to be husband and wife
and did thereafter live together as husband and wife. (Travers vs.Reinhardt [1907], 205 U.S., 423.

It would be possible to leave out of view altogether the two sections of the Marriage Law which have just
been quoted and discussed. The particular portion of the law which, in our opinion, is controlling, is
section IX, reading as follows: "No marriage heretofore solemnized before any person professing to have
authority therefor shall be invalid for want of such authority or on account of any informality, irregularity, or
omission, if it was celebrated with the belief of the parties, or either of them, that he had authority and that
they have been lawfully married."

The trial judge in construing this provision of law said that he did not believe that the legislative intention
in promulgating it was to validate marriages celebrated between Mohammedans. To quote the judge:

This provisions relates to marriages contracted by virtue of the provisions of the Spanish law
before revolutionary authorized to solemnized marriages, and it is not to be presumed that the
legislator intended by this law to validate void marriages celebrated during the Spanish
sovereignty contrary to the laws which then governed.

What authority there is for this statement, we cannot conceive. To our mind, nothing could be clearer than
the language used in section IX. Note for a moment the all embracing words found in this section:

"No marriage" Could more inclusive words be found? "Heretofore solemnized" Could any other
construction than that of retrospective force be given to this phrase? "Before any person professing to
have authority therefor shall be invalid for want of such authority" Could stronger language than this be
invoked to announce legislative intention? "Or on account of any informality, irregularity, or omission"
Could the legislative mind frame an idea which would more effectively guard the marriage relation against
technicality? "If it was celebrated with the belief of the parties, or either of them, that he had authority and
that they have been lawfully married" What was the purpose of the legislator here, if it was not to
legalize the marriage, if it was celebrated by any person who thought that he had authority to perform the
same, and if either of the parties thought that they had been married? Is there any word or hint of any
word which would restrict the curative provisions of section IX of the Marriage Law to Christian
marriages? By what system of mental gymnastics would it be possible to evolve from such precise
language the curious idea that it was restricted to marriages performed under the Spanish law before the
revolutionary authorities?

In view of the importance of the question, we do not desire to stop here but would ascertain from other
sources the meaning and scope of Section IX of General Order No. 68.

The purpose of the government toward the Mohammedan population of the Philippines has, time and
again, been announced by treaty, organic law, statutory law, and executive proclamation. The Treaty of
Paris in its article X, provided that "The inhabitants of the territories over which Spain relinquishes or
cedes her sovereignty shall be secured Instructions to the Philippine Commission imposed on every
branch of the Government of the Philippine Islands the inviolable rule "that no law shall be made
respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise
and enjoyment of religious profession and worship, without discrimination or preference, shall forever be
allowed ... That no form of religion and no minister of religion shall be forced upon any community or upon
any citizen of the Islands; that, upon the other hand, no minister of religion shall be interfered with or
molested in following his calling, and that the separation between state and church shall be real, entire,
and absolute." The notable state paper of President McKinley also enjoined the Commission, "to bear in
mind that the Government which they are establishing is designed . . . for the happiness, peace, and
prosperity of the people of the Philippine Islands" and that, therefore, "the measures adopted should be
made to conform to their customs, their habits, and even their prejudices. . . . The Philippine Bill and the
Jones Law reproduced the main constitutional provisions establishing religious toleration and equality.
Executive and legislative policy both under Spain and the United States followed in the same path. For
instance, in the Treaty of April 30, 1851, entered into by the Captain General of the Philippines and the
Sultan of Sulu, the Spanish Government guaranteed "with all solemnity to the Sultan and other
inhabitants of Sulu the free exercise of their religion, with which it will not interfere in the slightest way,
and it will also respect their customs." (See further Decree of the Governor-General of January 14, 1881.)
For instance, Act No. 2520 of the Philippine Commission, section 3, provided that "Judges of the Court of
First Instance and justices of the peace deciding civil cases in which the parties are Mohammedans or
pagans, when such action is deemed wise, may modify the application of the law of the Philippine Islands,
except laws of the United States applicable to the Philippine Islands, taking into account local laws and
customs. . . ." (See further Act No. 787, sec. 13 [ j]; Act No. 1283, sec. 6 [b]; Act No. 114 of the Legislative
Council amended and approved by the Philippine Commission; Cacho vs. Government of the United
States [1914], 28 Phil., 616.) Various responsible officials have so oft announced the purpose of the
Government not to interfere with the customs of the Moros, especially their religious customs, as to make
quotation of the same superfluous.

The retrospective provisions of the Philippine Marriage Law undoubtedly were inspired by the
governmental policy in the United States, with regard to the marriages of the Indians, the Quakers, and
the Mormons. The rule as to Indians marriages is, that a marriage between two Indians entered into
according to the customs and laws of the people at a place where such customs and laws are in force,
must be recognized as a valid marriage. The rule as to the Society of Quakers is, that they will be left to
their own customs and that their marriages will be recognized although they use no solemnization. The
rule as to Mormon marriages is that the sealing ceremony entered into before a proper official by
members of that Church competent to contract marriage constitutes a valid marriage.

The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction
is not only a civil contract, but, it is a new relation, an institution in the maintenance of which the public is
deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons
dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or
evidence special to the case, to be in fact married. The reason is that such is the common order of
society, and if the parties were not what they thus hold themselves out as being, they would be living in
the constant violation of decency and of law. A presumption established by our Code of Civil Procedure is
"that a man and woman deporting themselves as husband and wife have entered into a lawful contract of
marriage.:" (Sec. 334, No. 28.) Semper praesumitur pro matrimonio Always presume marriage. (U.
S. vs. Villafuerte and Rabano [1905], 4 Phil., 476; Son Cui vs. Guepangco, supra; U.S. vs. Memoracion
and Uri [1916], 34 Phil., 633; Teter vs. Teter [1884], 101 Ind., 129.)

Section IX of the Marriage Law is in the nature of a curative provision intended to safeguard society by
legalizing prior marriages. We can see no substantial reason for denying to the legislative power the right
to remove impediments to an effectual marriage. If the legislative power can declare what shall be valid
marriages, it can render valid, marriages which, when they took place, were against the law. Public policy
should aid acts intended to validate marriages and should retard acts intended to invalidate marriages.
(Coghsen vs. Stonington [1822], 4 Conn, 209; Baity vs. Cranfill [1884], 91 N. C., 273.)

The courts can properly incline the scales of their decisions in favors of that solution which will mot
effectively promote the public policy. That is the true construction which will best carry legislative intention
into effect. And here the consequences, entailed in holding that the marriage of the Mora Adong and the
deceased Cheong Boo, in conformity with the Mohammedan religion and Moro customs, was void, would
be far reaching in disastrous result. The last census shows that there are at least one hundred fifty
thousand Moros who have been married according to local custom. We then have it within our power
either to nullify or to validate all of these marriages; either to make all of the children born of these unions
bastards or to make them legitimate; either to proclaim immorality or to sanction morality; either to block
or to advance settled governmental policy. Our duty is a obvious as the law is plain.

In moving toward our conclusion, we have not lost sight of the decisions of this court in the cases of
United States vs. Tubban ([1915]), 29 Phil., 434) and United States vs. Verzola ([1916, 33 Phil., 285). We
do not, however, believe these decisions to be controlling. In the first place, these were criminal actions
and two Justice dissented.. In the second place, in the Tubban case, the marriage in question was a tribal
marriage of the Kalingas, while in the Verzola case, the marriage had been performed during the
Spanish regime by a lieutenant of the Guardia Civil. In neither case, in deciding as to whether or not the
accused should be given the benefit of the so-called unwritten law, was any consideration given to the
provisions of section IX of General Order No. 68. We are free to admit that, if necessary, we would
unhesitatingly revoke the doctrine announced in the two cases above mentioned.

We regard the evidence as producing a moral conviction of the existence of the Mohammedan marriage.
We regard the provisions of section IX of the Marriage law as validating marriages performed according to
the rites of the Mohammedan religion.

There are other questions presented in the various assignments of error which it is unnecessary to
decide. In resume, we find the Chinese marriage not to be proved and that the Chinaman Cheong Seng
Gee has only the rights of a natural child, and we find the Mohammedan marriage to be proved and to be
valid, thus giving to the widow and the legitimate children of this union the rights accruing to them under
the law.

Judgment is reversed in part, and the case shall be returned to the lower court for a partition of the
property in accordance with this decision, and for further proceedings in accordance with law. Without
special findings as to costs in this instance, it is so ordered.

Araullo, C.J., Johnson, Street, Avancea, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

US vs Thomas Patrick Cavanaugh

This case requires us to determine whether government surveillance complied with the Foreign
Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. Secs. 1801-1811 (1982), and whether the
procedures established by the Act are consistent with the United States Constitution.

2
Pursuant to a wiretap authorized under FISA, government officers intercepted a telephone
conversation in which appellant Thomas Patrick Cavanagh offered to sell defense secrets to
representatives of the Soviet Union. FBI agents posing as Soviet agents arranged to meet with
Cavanagh, and he delivered certain classified documents to them. Cavanagh was indicted for
attempting to deliver defense information to a foreign government in violation of 18 U.S.C. Sec. 794(a)
(1982). He moved to suppress the fruits of the electronic surveillance; the district court denied the
motion; and appellant entered a conditional guilty plea under Rule 11(a)(2) of the Federal Rules of
Criminal Procedure. On appeal the question is whether the district court erred in denying the
suppression motion. We affirm.

3
FISA provides statutory authorization for electronic surveillance of foreign powers and their agents in
certain circumstances. With important exceptions not pertinent here, FISA requires judicial approval
before the government engages in an electronic surveillance for foreign intelligence purposes. Under
the statute, a federal officer with the approval of the Attorney General may apply to a special FISA
court for an order authorizing surveillance. 50 U.S.C. Sec. 1804. The application must state facts
justifying the applicant's belief that "the target of the electronic surveillance is a foreign power or an
agent of a foreign power," id. Sec. 1804(a)(4)(A), and must certify "that the purpose of the surveillance
is to obtain foreign intelligence information," id. Sec. 1804(a)(7)(B). A court may approve the proposed
surveillance only if it finds probable cause to believe that "the target of the electronic surveillance is a
foreign power or an agent of a foreign power." Id. Sec. 1805(a)(3)(A). Where, as in the case before us,
the surveillance is directed at a facility "owned, leased, or exclusively used by [a] foreign power," the
court may comply with the statute by giving a general description of the "information sought [and] the
communications or activities to be subjected to the surveillance...." Id. Sec. 1805(c); see also id. Sec.
1804(b).
4
As a threshold matter, there is no dispute over appellant's standing to challenge the lawfulness of the
surveillance. FISA permits aggrieved persons to seek suppression of evidence on the ground that it
was unlawfully acquired or that the surveillance was not conducted in conformity with the order of
authorization. Id. Sec. 1806(e). Appellant was a party to an intercepted communication, and the
government concedes he is an "aggrieved person" within the meaning of the statute. See United
States v. Belfield, 692 F.2d 141, 143, 146 n. 21 (D.C.Cir.1982) (party "incidentally overheard during the
course of surveillance of another target" is an aggrieved party). The appellant has standing to
challenge the government's compliance with the statute.
5
We conclude also that the surveillance satisfied the statutory requirements for issuance of a warrant
by the district court. The Attorney General submitted to the district court an affidavit under 50 U.S.C.
Sec. 1806(f) asserting that disclosure of the materials relating to the surveillance would harm the
national security of the United States. We have reviewed the sealed materials, which include the
government's application for the wiretap and the order authorizing it. The application and the order
complied with the statute. Id. Secs. 1804 (application), 1805 (order). We agree with the district court's
findings that the application established probable cause to believe that the target of the surveillance
was a foreign power, and included proposed minimization procedures consistent with the statute. The
district court correctly concluded that the surveillance was properly authorized and conducted. Id. Sec.
1806(e)-(g).

6
Appellant's main contention in support of his suppression motion is that FISA is deficient under the
Fourth Amendment. He argues that the statute does not provide for sufficient judicial scrutiny of the
government's surveillance activities. He contends further that FISA's requirement of probable cause
that the surveillance target be a foreign power and that the court order approving the surveillance
"generally" describe the information sought and the communications to be intercepted are not
sufficient under the Fourth Amendment.

7
The case is presented to us as one in which FISA, and its conformity to the Fourth Amendment,
control the outcome; and as such we need determine only whether the statutory requirements are
sufficient to satisfy the "general Fourth Amendment standard of reasonableness." See v. City of
Seattle, 387 U.S. 541, 546, 87 S.Ct. 1737, 1741, 18 L.Ed.2d 943 (1967).
8
By enacting a statutory framework under which the government may seek and obtain approval of
foreign intelligence surveillance, Congress granted explicit authorization of such activity, which it
viewed as vital to national security. S.Rep. No. 604 (Part I), 95th Cong., 2d Sess. 7-9, reprinted in
1978 U.S.Code Cong. & Ad.News 3904, 3908-10. Congress sought to accommodate and advance
both the government's interest in pursuing legitimate intelligence activity and the individual's interest in
freedom from improper government intrusion. Id. As we will discuss, appellant fails to persuade us that
Congress did not give sufficient weight to the latter. FISA satisfies the constraints the Fourth
Amendment places on foreign intelligence surveillance conducted by the government. See United
States v. Duggan, 743 F.2d 59, 72-74 (2d Cir.1984) (holding that FISA does not violate Fourth
Amendment); In re Kevork, 634 F.Supp. 1002, 1010-14 (C.D.Cal.1985) (same), aff'd, 788 F.2d
566 (9th Cir.1986); United States v. Megahey, 553 F.Supp. 1180, 1185-92 (E.D.N.Y.1982) (same);
United States v. Falvey, 540 F.Supp. 1306, 1311-14 (E.D.N.Y.1982) (same).
9
Appellant argues that the prior judicial scrutiny afforded by FISA is insufficient to satisfy the warrant
requirement of the Fourth Amendment because the FISA court is not a detached and neutral body, but
functions instead as a compliant arm of the government. Appellant cites a statistical study showing
that the FISA court rarely if ever denies the government's applications. See Schwartz, Oversight of
 Minimization Compliance Under the Foreign Intelligence Surveillance Act: How the Watchdogs Are
Doing Their Jobs, 12 Rutgers L.J. 405, 445 n. 235A, 446 n. 239 (1981). The court's infrequent denial
of applications is equally consistent with a practice of careful compliance with the statutory
requirements on the part of the government. See H.R.Rep. 974, 97th Cong., 2d Sess. 3 (1982) (report
of the House Permanent Select Committee on Intelligence acting in its oversight capacity under FISA,
50 U.S.C. Sec. 1808, noting the government's careful compliance with the Act); see also S.Rep. 660,
98th Cong., 2d Sess. 23 (1984) (report of the Senate Select Committee on Intelligence, also acting in
its oversight capacity under FISA, noting same). The argument by appellant on this aspect of the case
is not persuasive for the overriding consideration is that issuance of the warrant is by a detached
judicial officer. We conclude that appellant has failed to show that the FISA court provides anything
other than neutral and responsible oversight of the government's activities in foreign intelligence
surveillance.

10
In arguing that FISA does not satisfy the Fourth Amendment's requirements of probable cause and
particularity, appellant ignores the Supreme Court's admonition that the showing necessary under the
Fourth Amendment to justify a surveillance conducted for national security purposes is not necessarily
analogous to the standard of probable cause applicable to criminal investigations. United States v.
United States District Court, 407 U.S. 297, 322, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). The Court
explained that "a [d]ifferent standard[ ] [of probable cause] may be compatible with the Fourth
Amendment if [it is] reasonable both in relation to the legitimate need of Government for intelligence
information and the protected rights of our citizens. For the warrant application may vary according to
the governmental interest to be enforced and the nature of citizen rights deserving protection." Id. at
322-23, 92 S.Ct. at 2139. The Court reiterated that the probable cause requirement is to be construed
against the Fourth Amendment's reasonableness standard: "In cases in which the Fourth Amendment
requires that a warrant to search be obtained, 'probable cause' is the standard by which a particular
decision to search is tested against the constitutional mandate of reasonableness." Id. at 323, 92 S.Ct.
at 2139. (quoting Camara v. Municipal Court, 387 U.S. 523, 534, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 390
(1967)). The question is whether the showing of probable cause required by FISA passes muster
under the reasonableness standard.
11
We find that the probable cause showing required by FISA is reasonable. The application must state
that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and
must certify that the purpose of the surveillance is to obtain foreign intelligence information and that
the information cannot reasonably be obtained by normal investigative techniques. 50 U.S.C. Sec.
1804(a). It is true, as appellant points out in his brief, that the application need not state that the
surveillance is likely to uncover evidence of a crime; but as the purpose of the surveillance is not to
ferret out criminal activity but rather to gather intelligence, such a requirement would be illogical. See
United States District Court, 407 U.S. at 322, 92 S.Ct. at 2139 (recognizing distinction between
surveillance for national security purposes and surveillance of "ordinary crime"); Belfield, 692 F.2d at
144 n. 8 ("[m]uch valuable intelligence information ... has nothing to do with the contemplated
commission of a crime"). And as appellant all but conceded at oral argument before us, there is no
merit to the contention that he is entitled to suppression simply because evidence of his criminal
conduct was discovered incidentally as the result of an intelligence surveillance not supported by
probable cause of criminal activity. See Duggan, 743 F.2d at 73 n. 5.

12
We note also that surveillance in this case was aimed at a "facilit[y] ... owned, leased, or exclusively
used by [a] foreign power." 50 U.S.C. Sec. 1805(c). The target of the surveillance was thus a "Foreign
Power" within the meaning of 50 U.S.C. Sec. 1801(a) and not the more broadly defined "Agent of a
Foreign Power" as set out in 50 U.S.C. Sec. 1801(b). We express no opinion on whether the Act's
 probable cause requirement complies with the Fourth Amendment when surveillance is aimed at an
agent of a foreign power.

13
Appellant suggested at oral argument that FISA does not allow for sufficient judicial scrutiny of the
government's need for the intelligence information. We believe that the probable cause requirements
of the statute provide ample scrutiny on this issue. The certifications required by the statute are
sufficient to ensure that the approved surveillance will fit within the category of foreign intelligence
surveillance.

14
We reject appellant's suggestion that FISA violates the Fourth Amendment's particularity requirement
by allowing a general description of the information sought. Foreign intelligence gathering is often
intended simply to "enhance[ ] ... the Government's preparedness for some possible future crisis...."
United States District Court, 407 U.S. at 322, 92 S.Ct. at 2139. Where, as here, surveillance is
directed at a "facilit[y] ... owned, leased, or exclusively used by [a] foreign power," 50 U.S.C. Sec.
1805(c), the government may be unable to provide "a detailed description of the nature of the
information sought...." Id. Sec. 1804(a)(6) (criteria in section 1804(a)(6) exempted by sections 1804(b)
and 1805(c) in the case of foreign power targets). The requirement that in the case of a foreign power
target, the court order "shall generally describe the information sought," id. Sec. 1805(c), is sufficiently
precise in this context.

15
Appellant next argues that the composition of the FISA court is in violation of article III of the
Constitution. The special FISA court is composed of seven United States District Judges designated
by the Chief Justice of the United States. Id. Sec. 1803(a). Each FISA judge serves one term of up to
seven years and may not serve a second term. Id. Sec. 1803(d). Though appellant's argument is not
entirely clear, he appears to suggest that the FISA court is not properly constituted under article III
because the statute does not provide for life tenure on the FISA court. This argument has been raised
in a number of cases and has been rejected by the courts. Kevork, 634 F.Supp. at 1014; Megahey,
553 F.Supp. at 1197; see Falvey, 540 F.Supp. at 1313 n. 16. We reject it as well.

16
We need not address appellant's suggestion that FISA applications must be passed upon by article III
judges, as the judges assigned to serve on the FISA court are federal district judges, and as such they
are insulated from political pressures by virtue of the protections they enjoy under article III, namely life
tenure and a salary that cannot be diminished. U.S. Const. art. III, Sec. 1. As this case illustrates,
moreover, article III courts are not foreclosed from reviewing the decisions of the FISA court.

17
Appellant invokes the principles of judicial independence and separation of powers that underlie article
III, see Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57-60, 102 S.Ct.
2858, 2864-65, 73 L.Ed.2d 598 (1981), but those principles are not implicated by appellant's
speculation that a judge designated to the FISA court might be influenced by the possibility that his
temporary assignment might be revoked. By statute, federal judges may be designated by the Chief
Justice to serve temporarily on other courts, 28 U.S.C. Secs. 291-296 (1982), and temporary
designation within the federal judicial system has never been thought to undermine the judicial
independence that article III was intended to secure. See generally Glidden Co. v. Zdanok, 370 U.S.
530, 530-41, 82 S.Ct. 1459, 1463-68, 8 L.Ed.2d 671 (1962) (referring to the designation provisions).
As was noted by the courts in Kevork, 634 F.Supp. at 1014, and Megahey, 553 F.Supp. at 1197, there
is substantial precedent for the temporary assignment of lower federal judges by the Chief Justice to
serve on various specialized courts. See, e.g., 28 U.S.C. Sec. 292(e) (stating that the Chief Justice
 may assign district judges temporarily to the Court of International Trade); Economic Stabilization Act
Amendments of 1971, Pub.L. No. 92-210, Sec. 211(b)(1), 85 Stat. 743, 749 (1971) (stating that "the
Temporary Emergency Court of Appeals ... shall consist of three or more [circuit or district] judges to
be designated by the Chief Justice.... The Chief Justice ... may, from time to time, designate additional
judges ... and revoke previous designations"); 28 U.S.C. Sec. 1407(d) (stating that "[t]he judicial panel
on multidistrict litigation shall consist of seven circuit and district judges designated from time to time
by the Chief Justice"). The FISA court does not violate article III.
18
Finally, we reject appellant's assertion that the FISA court violates article II of the Constitution because
judges are assigned to the court by the Chief Justice rather than by the President of the United States.
The contention is foreclosed by a decision of the Supreme Court, holding that temporary assignment
of a federal district judge to another district did not violate the President's appointment power under
the Constitution. Lamar v. United States,241 U.S. 103, 118, 36 S.Ct. 535, 540, 60 L.Ed. 912 (1916).
19
The government complied with FISA and the statute survives appellant's constitutional challenges.
Appellant's conviction is AFFIRMED.

Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993),[1]was a case in which
the Supreme Court of the United States held that an ordinance passed in Hialeah, Florida, forbidding
the "unnecessar[y]" killing of "an animal in a public or private ritual or ceremony not for the primary
purpose of food consumption", was unconstitutional. The law was enacted soon after the city council
of Hialeah learned that the Church of Lukumi Babalu Aye, which practiced Santera, a religion whose
rituals sometimes demand animal sacrifice, was planning on locating there. The church filed a
lawsuit in United States district court for the Southern District of Florida, seeking for the Hialeah
ordinance to be declared unconstitutional.

Adhering to Employment Division v. Smith, the lower courts deemed the law to have a legitimate and
rational government purpose and therefore upheld the enactment. The Supreme Court, however,
held that the ordinances were neither neutral nor generally applicable: rather, they applied
exclusively to the church. Because the law was targeted at Santera, the Court held, it was not
subject to an undemanding rational basis test. Rather, the nature of the case was held to mandate a
standard of strict scrutiny: state action had to be justified by a compelling governmental interest, and
be narrowly tailored to advance that interest. Because the ordinance suppressed more religious
conduct than was necessary to achieve its stated ends, it was deemed unconstitutional, with Justice
Anthony Kennedy stating in the decision, religious beliefs need not be acceptable, logical,
consistent or comprehensible to others in order to merit First Amendment protection. [2]

Somewhat similarly in 2009, a freedom of religion case related to animal sacrifice was taken to
the 5th U.S. Circuit Court of Appeals in the case of Jose Merced, President Templo Yoruba Omo
Orisha Texas, Inc., v. City of Euless.[3]The court ruled that the Merced case of the freedom of
exercise of religion was meritorious and prevailing and that Merced was entitled under the Texas
Religious Freedom and Restoration Act (TRFRA) to an injunction preventing the city of Euless,
Texas from enforcing its ordinances that burdened hisreligious practices relating to the use of
animals,[4] (see Tex. Civ. Prac. & Rem. Code 110.005(a)(2)) without the court having to reach his
claims under the First and Fourteenth Amendments.

ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS.
LEONARDO EBRALINAG, JUSTINIANA TANTOG, represented by her father AMOS TANTOG;
JEMILOYAO & JOEL OYAO, represented by their parents MR. & MRS. ELIEZER OYAO;
JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. & MRS. GODOFREDO
DIAMOS; SARA OSTIA & JONATHAN OSTIA, represented by their parents MR. & MRS. FAUTO
OSTIA; IRVIN SEQUINO & RENAN SEQUINO, represented by their parents MR. & MRS. LYDIO
SEQUINO; NAPTHALE TANACAO, represented by his parents MR. & MRS. MANUEL
TANACAO; PRECILA PINO, represented by her parents MR. & MRS. FELIPE PINO; MARICRIS
ALFAR, RUWINA ALFAR, represented by their parents MR. & MRS. HERMINIGILDO ALFAR;
FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents ABDON ALFAR;
ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO
ALFAR; MARTINO VILLAR, represented by his parents MR. & MRS. GENARO VILLAR;
PERGEBRIEL GUINITA & CHAREN GUINITA, represented by their parents MR. & MRS. CESAR
GUINITA; ALVIN DOOP, represented by his parents MR. & MRS. LEONIDES DOOP; RHILYN
LAUDE, represented by her parents MR. & MRS. RENE LAUDE; LEOREMINDA MONARES,
represented by her parents, MR. & MRS. FLORENCIO MONARES; MERCY MONTECILLO,
represented by her parents MR. & MRS. MANUEL MONTECILLO; ROBERTO TANGAHA,
represented by his parent ILUMINADA TANGAHA; EVELYN, MARIA & FLORA TANGAHA,
represented by their parents MR. & MRS. ALBERTO TANGAHA; MAXIMO EBRALINAG,
represented by his parents, MR. & MRS. PAQUITO EBRALINAG; JUTA CUMON, GIDEON
CUMON & JONATHAN CUMON, represented by their father RAFAEL CUMON; EVIE
LUMAKANG & JUNAR LUMAKANG, represented by their parents MR. & MRS. LUMAKANG;
EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE SARSOZO, represented by their
parents MR. & MRS. VIRGILIO SARSOZO; MICHAEL JOSEPH & HENRY JOSEPH, represented
by parent ANNIE JOSEPH; EMERSON TABLASON & MASTERLOU TABLASON, represented
by their parent EMERLITO TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.

G.R. No. 95887 March 1, 1993

MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD ALSADO,
JOEBERT ALSADO & RUDYARD ALSADO, represented by their parents MR. & MRS.
ABELARDO ALSADO; NELIA ALSADO, REU ALSADO & LILIBETH ALSADO, represented by
their parents MR. & MRS. ROLANDO ALSADO; SUZETTE NAPOLES, represented by her
parents ISMAILITO NAPOLES & OPHELIA NAPOLES; JESICA CARMELOTES, represented by
her parents MR. & MRS. SERGIO CARMELOTES; BABY JEAN MACAPAS, represented by her
parents MR. & MRS. TORIBIO MACAPAS; GERALDINE ALSADO, represented by her parents
MR. & MRS. JOEL ALSADO; RAQUEL DEMOTOR & LEAH DEMOTOR, represented by their
parents MR. & MRS. LEONARDO DEMOTOR; JURELL VILLA & MELONEY VILLA, represented
by their parents MR. & MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY GRACE
MAHINAY and MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX
MAHINAY; JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIFE
ANTIOLA and ANECITA ANTIOLA; MARIA CONCEPCION CABUYAO, represented by her
parents WENIFREDO CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented by
her parents MANUEL TURNO and VEVENCIA TURNO; SOLOMON PALATULON, SALMERO
PALATULON and ROSALINDA PALATULON, represented by their parents MARTILLANO
PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN,
respondents.

Felino M. Ganal for petitioners.

The Solicitor General for respondents.

GRIO-AQUINO, J.:

These two special civil actions for certiorari, Mandamus and Prohibition were consolidated
because they raise essentially the same issue: whether school children who are members or
a religious sect known as Jehovah's Witnesses may be expelled from school (both public and
private), for refusing, on account of their religious beliefs, to take part in the flag ceremony
which includes playing (by a band) or singing the Philippine national anthem, saluting the
Philippine flag and reciting the patriotic pledge.
In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and
Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high school and
elementary school students in the towns of Daan Bantayan, Pinamungajan, Carcar, and
Taburan Cebu province. All minors, they are assisted by their parents who belong to the
religious group known as Jehovah's Witnesses which claims some 100,000 "baptized
publishers" in the Philippines.

In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and
Antonio A. Sangutan," the petitioners are 25 high school and grade school students enrolled
in public schools in Asturias, Cebu, whose parents are Jehovah's Witnesses. Both petitions
were prepared by the same counsel, Attorney Felino M. Ganal.

All the petitioners in these two cases were expelled from their classes by the public school
authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the
patriotic pledge as required by Republic Act No. 1265 of July 11, 1955, and by Department
Order No. 8 dated July 21, 1955 of the Department of Education, Culture and Sports (DECS)
making the flag ceremony compulsory in all educational institutions. Republic Act No. 1265
provides:

Sec. 1. All educational institutions shall henceforth observe daily flag

ceremony, which shall be simple and dignified and shall include the playing or
singing of the Philippine National anthem.

Sec. 2. The Secretary of Education is hereby authorized and directed to issue

or cause to be issued rules and regulations for the proper conduct of the flag
ceremony herein provided.

Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and
in accordance with rules and regulations issued by the Secretary of Education,
after proper notice and hearing, shall subject the educational institution
concerned and its head to public censure as an administrative punishment
which shall be published at least once in a newspaper of general circulation.

In case of failure to observe for the second time the flag-ceremony provided by
this Act, the Secretary of Education, after proper notice and hearing, shall
cause the cancellation of the recognition or permit of the private educational
institution responsible for such failure.

The implementing rules and regulations in Department Order No. 8 provide:

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL

EDUCATIONAL INSTITUTIONS.

1. The Filipino Flag shall be displayed by all educational institutions, public

and private, every school day throughout the year. It shall be raised at sunrise
and lowered at sunset. The flag-staff must be straight, slightly and gently
tapering at the end, and of such height as would give the Flag a commanding
position in front of the building or within the compound.

2. Every public and private educational institution shall hold a flag-raising

ceremony every morning except when it is raining, in which event the
ceremony may be conducted indoors in the best way possible. A retreat shall
be held in the afternoon of the same day. The flag-raising ceremony in the
morning shall be conducted in the following manner:

a. Pupils and teachers or students and faculty members who are

in school and its premises shall assemble in formation facing
the flag. At command, books shall be put away or held in the left
hand and everybody shall come to attention. Those with hats
shall uncover. No one shall enter or leave the school grounds
during the ceremony.
 b. The assembly shall sing the Philippine National
Anthem accompanied by the school band or without the
accompaniment if it has none; or the anthem may be played by
the school band alone. At the first note of the Anthem, the flag
shall be raised briskly. While the flag is being raised, all persons
present shall stand at attention and execute a salute. Boys and
men with hats shall salute by placing the hat over the heart.
Those without hat may stand with their arms and hands down
and straight at the sides. Those in military or Boy Scout uniform
shall give the salute prescribed by their regulations. The salute
shall be started as the Flag rises, and completed upon last note
of the anthem.

c. Immediately following the singing of the Anthem, the

assembly shall recite in unison the following patriotic
pledge (English or vernacular version), which may bring the
ceremony to a close. This is required of all public schools and of
private schools which are intended for Filipino students or
whose population is predominantly Filipino.

English Version

I love the Philippines.

It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in deed.

xxx xxx xxx

Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national
anthem, and recite the patriotic pledge for they believe that those are "acts of worship" or
"religious devotion" (p. 10, Rollo) which they "cannot conscientiously give . . . to anyone or
anything except God" (p. 8, Rollo). They feel bound by the Bible's command to "guard
ourselves from
idols 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol representing the
State (p. 10, Rollo). They think the action of the local authorities in compelling the flag salute
and pledge transcends constitutional limitations on the State's power and invades the sphere
of the intellect and spirit which the Constitution protect against official control (p. 10, Rollo).

This is not the first time that the question, of whether the children of Jehovah's Witnesses
may be expelled from school for disobedience of R.A. No. 1265 and Department Order No. 8,
series of 1955, has been raised before this Court.

The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106
Phil. 2 (1959) and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960). This Court in
the Gerona case upheld the expulsion of the students, thus:

The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and of freedom
and liberty which it and the Constitution guarantee and protect. Under a
system of complete separation of church and state in the government, the flag
is utterly devoid of any religious significance. Saluting the flag does not
involve any religious ceremony. The flag salute is no more a religious
ceremony than the taking of an oath of office by a public official or by a
candidate for admission to the bar.

In requiring school pupils to participate in the flag salute, the State thru the
Secretary of Education is not imposing a religion or religious belief or a
religious test on said students. It is merely enforcing a
 non-discriminatory school regulation applicable to all alike whether Christian,
Moslem, Protestant or Jehovah's Witness. The State is merely carrying out the
duty imposed upon it by the Constitution which charges it with supervision
over and regulation of all educational institutions, to establish and maintain a
complete and adequate system of public education, and see to it that all
schools aim to develop, among other things, civic conscience and teach the
duties of citizenship.

The children of Jehovah's Witnesses cannot be exempted from participation in

the flag ceremony. They have no valid right to such exemption. Moreover,
exemption to the requirement will disrupt school discipline and demoralize the
rest of the school population which by far constitutes the great majority.

The freedom of religious belief guaranteed by the Constitution does not and
cannot mean exemption from or non-compliance with reasonable and non-
discriminatory laws, rules and regulations promulgated by competent
authority. (pp. 2-3).

Gerona was reiterated in Balbuna, as follows:

The Secretary of Education was duly authorized by the Legislature thru

Republic Act 1265 to promulgate said Department Order, and its provisions
requiring the observance of the flag salute, not being a religious ceremony but
an act and profession of love and allegiance and pledge of loyalty to the
fatherland which the flag stands for, does not violate the constitutional
provision on freedom of religion. (Balbuna, et al. vs. Secretary of Education, et
al., 110 Phil. 150).

Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title VI,
Chapter 9 of the Administrative Code of 1987 (Executive Order No. 292) which took effect on
September 21, 1988 (one year after its publication in the Official Gazette, Vol. 63, No. 38 of
September 21, 1987). Paragraph 5 of Section 28 gives legislative cachet to the ruling
in Gerona, thus:

5. Any teacher or student or pupil who refuses to join or participate in the flag
ceremony may be dismissed after due investigation.

However, the petitioners herein have not raised in issue the constitutionality of the above
provision of the new Administrative Code of 1987. They have targeted only Republic Act No.
1265 and the implementing orders of the DECS.

In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils
belonging to the Jehovah's Witnesses, and enrolled in various public and private schools,
who refused to sing the Philippine national anthem, salute the Philippine flag and recite the
patriotic pledge. Division Superintendent of Schools, Susana B. Cabahug of the Cebu
Division of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division Superintendent,
recalling this Court's decision in Gerona, issued Division Memorandum No. 108, dated
November 17, 1989 (pp. 147-148, Rollo of G.R. No. 95770) directing District Supervisors, High
School Principals and Heads of Private Educational institutions as follows:

1. Reports reaching this Office disclose that there are a number of teachers,
pupils, students, and school employees in public schools who refuse to salute
the Philippine flag or participate in the daily flag ceremony because of some
religious belief.

2. Such refusal not only undermines Republic Act No. 1265 and the DECS
Department Order No. 8, Series of 1955 (Implementing Rules and Regulations)
but also strikes at the heart of the DECS sustained effort to inculcate
patriotism and nationalism.

3. Let it be stressed that any belief that considers the flag as an image is not in
any manner whatever a justification for not saluting the Philippine flag or not
participating in flag ceremony. Thus, the Supreme Court of the Philippine says:
 The flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national unity
and cohesion and freedom and liberty which it and the
Constitution guarantee and protect. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 11.)

4. As regards the claim for freedom of belief, which an objectionist may

advance, the Supreme Court asserts:

But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel. If the exercise of said
religious belief clashes with the established institutions of
society and with the law, then the former must yield and give
way to the latter. (Gerona, et al. vs. Sec. of Education, et al., 106
Phil. 11.)

5. Accordingly, teachers and school employees who choose not to participate

in the daily flag ceremony or to obey the flag salute regulation spelled out in
Department Order No. 8, Series of 1955, shall be considered removed from the
service after due process.

6. In strong language about pupils and students who do the same the Supreme
Court has this to say:

If they choose not to obey the flag salute regulation, they merely
lost the benefits of public education being maintained at the
expense of their fellow Citizens, nothing more. According to a
popular expression, they could take it or leave it! Having elected
not to comply with the regulation about the flag salute they
forfeited their right to attend public schools. (Gerona, et al. vs.
Sec. of Education, et al., 106 Phil. 15.)

7. School administrators shall therefore submit to this Office a report on those

who choose not to participate in flag ceremony or salute the Philippine flag.
(pp. 147-148, Rollo of G.R. No. 95770; Emphasis supplied).

Cebu school officials resorted to a number of ways to persuade the children of Jehovah's
Witnesses to obey the memorandum. In the Buenavista Elementary School, the children were
asked to sign an Agreement (Kasabutan) in the Cebuano dialect promising to sing the
national anthem, place their right hand on their breast until the end of the song and recite the
pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of
G.R. No. 95887), but they refused to sign the "Kasabutan" (p. 20, Rollo of G.R. No. 95770).

In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with the
Jehovah's Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts from
which reveal the following:

After two (2) fruitless confrontation meetings with the Jehovah's Witnesses'
parents on October 2, 1990 and yesterday due to their firm stand not to salute
the flag of the Republic of the Philippines during Flag Ceremony and other
occasions, as mandated by law specifically Republic Act No. 1265, this Office
hereby orders the dropping from the list in the School Register (BPS Form I) of
all teachers, all Jehovah Witness pupils from Grade I up to Grade VI effective
today.

xxx xxx xxx

This order is in compliance with Division Memorandum No. 108 s. 1989 dated
November 17, 1989 by virtue of Department Order No. 8 s. 1955 dated July 21,
1955 in accordance with Republic Act No. 1265 and Supreme Court Decision of
a case "Genaro Gerona, et al., Petitioners and Appellants vs. The Honorable
Secretary of Education, et al., Respondents and Appellees' dated August 12,
1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)
In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered the
"dropping from the rolls" of students who "opted to follow their religious belief which is
against the Flag Salute Law" on the theory that "they forfeited their right to attend public
schools." (p. 47, Rollo of G.R. No. 95770.)

1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.

Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo

Elementary School with the information that this office is sad to order the
dropping of Jeremias Diamos and Jeaneth Diamos, Grades III and IV pupils
respectively from the roll since they opted to follow their religious belief which
is against the Flag Salute Law (R.A. 1265) and DECS Order No. 8, series of
1955, having elected not to comply with the regulation about the flag salute
they forfeited their right to attend public schools (Gerona, et al. vs. Sec. of
Education, et al., 106 Philippines 15). However, should they change their mind
to respect and follow the Flag Salute Law they may be re-accepted.

(Sgd.) MANUEL F. BIONGCOG

District Supervisor

(p. 47, Rollo of G.R. No. 95770.)

The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan
National High School, Agujo Elementary School, Calape Barangay National High School,
Pinamungajan Provincial High School, Tabuelan Central School, Canasojan Elementary
School, Liboron Elementary School, Tagaytay Primary School, San Juan Primary School and
Northern Central Elementary School of San Fernando, Cebu, upon order of then Acting
Division Superintendent Marcelo Bacalso, prompted some Jehovah's Witnesses in Cebu to
appeal to the Secretary of Education Isidro Cario but the latter did not answer their letter. (p.
21, Rollo.)

The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled because
Dr. Pablo Antopina, who succeeded Susana Cabahug as Division Superintendent of Schools,
would not recall the expulsion orders of his predecessor. Instead, he verbally caused the
expulsion of some more children of Jehovah's Witnesses.

On October 31, 1990, the students and their parents filed these special civil actions
for Mandamus,Certiorari and Prohibition alleging that the public respondents acted without
or in excess of their jurisdiction and with grave abuse of discretion (1) in ordering their
expulsion without prior notice and hearing, hence, in violation of their right to due process,
their right to free public education, and their right to freedom of speech, religion and worship
(p. 23, Rollo). The petitioners pray that:

c. Judgment be rendered:

i. declaring null and void the expulsion or dropping from the

rolls of herein petitioners from their respective schools;

ii. prohibiting and enjoining respondent from further barring the

petitioners from their classes or otherwise implementing the
expulsion ordered on petitioners; and

iii. compelling the respondent and all persons acting for him to
admit and order the re-admission of petitioners to their
respective schools. (p. 41, Rollo.)

and that pending the determination of the merits of these cases, a temporary restraining
order be issued enjoining the respondents from enforcing the expulsion of the petitioners
and to re-admit them to their respective classes.
On November 27, 1990, the Court issued a temporary restraining order and a writ of
preliminary mandatory injunction commanding the respondents to immediately re-admit the
petitioners to their respective classes until further orders from this Court (p. 57, Rollo).

The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F.
Biongcog to be impleaded as respondents in these cases.

On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p.
98, Rollo) defending the expulsion orders issued by the public respondents on the grounds
that:

1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious

and anti-social school children and consequently disloyal and mutant Filipino
citizens.

2. There are no new and valid grounds to sustain the charges of the Jehovah's
Witnesses that the DECS' rules and regulations on the flag salute ceremonies
are violative of their freedom of religion and worship.

3. The flag salute is devoid of any religious significance; instead, it inculcates

respect and love of country, for which the flag stands.

4. The State's compelling interests being pursued by the DECS' lawful

regulations in question do not warrant exemption of the school children of the
Jehovah's Witnesses from the flag salute ceremonies on the basis of their own
self-perceived religious convictions.

5. The issue is not freedom of speech but enforcement of law and

jurisprudence.

6. State's power to regulate repressive and unlawful religious practices

justified, besides having scriptural basis.

7. The penalty of expulsion is legal and valid, more so with the enactment of
Executive Order No. 292 (The Administrative Code of 1987).

Our task here is extremely difficult, for the 30-year old decision of this court
in Gerona upholding the flag salute law and approving the expulsion of students who refuse
to obey it, is not lightly to be trifled with.

It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by
its in corporation in the Administrative Code of 1987, the present Court believes that the time
has come to re-examine it. The idea that one may be compelled to salute the flag, sing the
national anthem, and recite the patriotic pledge, during a flag ceremony on pain of being
dismissed from one's job or of being expelled from school, is alien to the conscience of the
present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees
their rights to free speech ** and the free exercise of religious profession and worship (Sec.
5, Article III, 1987 Constitution; Article IV, Section 8, 1973 Constitution; Article III, Section 1[7],
1935 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the
amplest protection among human rights, for it involves the relationship of man to his Creator
(Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA
514, 530-531).

The right to religious profession and worship has a two-fold aspect, vis.,
freedom to believe and freedom to act on one's belief. The first is absolute as
long as the belief is confined within the realm of thought. The second is
subject to regulation where the belief is translated into external acts that affect
the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).

Petitioners stress, however, that while they do not take part in the compulsory flag ceremony,
they do not engage in "external acts" or behavior that would offend their countrymen who
believe in expressing their love of country through the observance of the flag ceremony. They
quietly stand at attention during the flag ceremony to show their respect for the right of those
who choose to participate in the solemn proceedings (Annex F, Rollo of G.R. No. 95887, p. 50
and Rollo of G.R. No. 95770, p. 48). Since they do not engage in disruptive behavior, there is
no warrant for their expulsion.

The sole justification for a prior restraint or limitation on the exercise of

religious freedom (according to the late Chief Justice Claudio Teehankee in his
dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty) to
prevent." Absent such a threat to public safety, the expulsion of the petitioners
from the schools is not justified.

The situation that the Court directly predicted in Gerona that:

The flag ceremony will become a thing of the past or perhaps conducted with
very few participants, and the time will come when we would have citizens
untaught and uninculcated in and not imbued with reverence for the flag and
love of country, admiration for national heroes, and patriotism a pathetic,
even tragic situation, and all because a small portion of the school population
imposed its will, demanded and was granted an exemption. (Gerona, p. 24.)

has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses
from saluting the flag, singing the national anthem and reciting the patriotic pledge, this
religious group which admittedly comprises a "small portion of the school population" will
shake up our part of the globe and suddenly produce a nation "untaught and uninculcated in
and unimbued with reverence for the flag, patriotism, love of country and admiration for
national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners
seek only is exemption from the flag ceremony, not exclusion from the public schools where
they may study the Constitution, the democratic way of life and form of government, and
learn not only the arts, sciences, Philippine history and culture but also receive training for a
vocation of profession and be taught the virtues of "patriotism, respect for human rights,
appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual
values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the
petitioners from Philippine schools will bring about the very situation that this Court had
feared in Gerona. Forcing a small religious group, through the iron hand of the law, to
participate in a ceremony that violates their religious beliefs, will hardly be conducive to love
of country or respect for dully constituted authorities.

As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):

. . . To believe that patriotism will not flourish if patriotic ceremonies are

voluntary and spontaneous instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions to free minds. . . . When
they [diversity] are so harmless to others or to the State as those we deal with
here, the price is not too great. But freedom to differ is not limited to things
that do not matter much. That would be a mere shadow of freedom. The test of
its substance is the right to differ as to things that touch the heart of the
existing order.

Furthermore, let it be noted that coerced unity and loyalty even to the country, .
. . assuming that such unity and loyalty can be attained through coercion
is not a goal that is constitutionally obtainable at the expense of religious
liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs.
Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.)

Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they
are enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to
receive free education, for it is the duty of the State to "protect and promote the right of all
citizens to quality education . . . and to make such education accessible to all (Sec. 1, Art.
XIV).
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the exemption
of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between
their employer and a union because it would violate the teaching of their church not to join
any labor group:

. . . It is certain that not every conscience can be accommodated by all the laws
of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some "compelling state interests"
intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. Ct.
1790.)

We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to
the observance of the flag ceremony out of respect for their religious beliefs, however
"bizarre" those beliefs may seem to others. Nevertheless, their right not to participate in the
flag ceremony does not give them a right to disrupt such patriotic exercises. Paraphrasing
the warning cited by this Court inNon vs. Dames II, 185 SCRA 523, 535, while the highest
regard must be afforded their right to the free exercise of their religion, "this should not be
taken to mean that school authorities are powerless to discipline them" if they should commit
breaches of the peace by actions that offend the sensibilities, both religious and patriotic, of
other persons. If they quietly stand at attention during the flag ceremony while their
classmates and teachers salute the flag, sing the national anthem and recite the patriotic
pledge, we do not see how such conduct may possibly disturb the peace, or pose "a grave
and present danger of a serious evil to public safety, public morals, public health or any other
legitimate public interest that the State has a right (and duty) to prevent (German vs.
Barangan, 135 SCRA 514, 517).

Before we close this decision, it is appropriate to recall the Japanese occupation of our
country in 1942-1944 when every Filipino, regardless of religious persuasion, in fear of the
invader, saluted the Japanese flag and bowed before every Japanese soldier. Perhaps, if
petitioners had lived through that dark period of our history, they would not quibble now
about saluting the Philippine flag. For when liberation came in 1944 and our own flag was
proudly hoisted aloft again, it was a beautiful sight to behold that made our hearts pound
with pride and joy over the newly-regained freedom and sovereignty of our nation.

Although the Court upholds in this decision the petitioners' right under our Constitution to
refuse to salute the Philippine flag on account of their religious beliefs, we hope,
nevertheless, that another foreign invasion of our country will not be necessary in order for
our countrymen to appreciate and cherish the Philippine flag.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders
issued by the public respondents against the petitioners are hereby ANNULLED AND SET
ASIDE. The temporary restraining order which was issued by this Court is hereby made
permanent.

SO ORDERED.

Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and
Campos, Jr., JJ., concur.

Quiason, J., took no part.

Gutierrez, Jr., J., is on leave.

Ebralinag, et al vs. Div. Supt. of Schools of Cebu G.R.

No. 95770, March 1, 1993
Ebralinag, et al vs. Div. Supt. of Schools of Cebu

G.R. No. 95770, March 1, 1993

Facts:

In 1989, DECS Regional Office in Cebu received complaints about teachers and pupils belonging to the
Jehovahs Witness, and enrolled in various public and private schools, which refused to sing the Phil.
National Anthem, salute the flag and recite the patriotic pledge.

Division Superintendent of schools, Susana B. Cabahug of the Cebu Division of DECS and her Assistant
issued Division Memorandum No. 108, dated Nov. 17, 1989, directing District Supervisors, High School
Principals and Heads of Private Educational institutions to remove from service, after due process,
teachers and school employees, and to deprive the students and pupils from the benefit of public
education, if they do not participate in daily flag ceremony and doesnt obey flag salute rule.

Members of the Jehovahs Witness sect find such memorandum to be contrary to their religious belief and
choose not to obey. Despite a number of appropriate persuasions made by the Cebu officials to let them
obey the directives, still they opted to follow their conviction to their belief. As a result, an order was
issued by the district supervisor of Daan Bantayan District of Cebu, dated July 24, 1990, ordering the
dropping from the list in the school register of all Jehovahs Witness teachers and pupils from Grade 1 to
Grade 6 who opted to follow their belief which is against the Flag Salute Law, however, given a chance to
be re-accepted if they change their mind.

Some Jehovahs Witness members appealed to the Secretary of Education but the latter did not answer
to their letter.

On Oct. 31, 1990, students and their parents filed special civil actions for Mandamus, Certiorari and
prohibition, alleging that the respondents acted without or in excess of their jurisdiction and with grave
abuse of discretion in ordering their expulsion without prior notice and hearing, hence, in violation of their
right to due process, their right to free public education and their right to freedom of speech, religion and
worship. Petitioners prayed for the voiding of the order of expulsion or dropping from the rolls issued by
the District Supervisor; prohibiting and enjoining respondent from barring them from classes; and
compelling the respondent and all persons acting for him to admit and order their(Petitioners) re-
admission I their respective schools.

On November 27, 1990, Court issued a TRO and writ of preliminary mandatory injunction, commanding
the respondents to immediately re-admit the petitioners to their respective classes until further orders.

On May 31, the Solicitor General filed a consolidated comment to the petitions defending the expulsion
orders issued by the respondents.

Petitioners stressed that while they do not take part in the compulsory flag ceremony, they do not engage
in external acts or behavior that would offend their countrymen who believe in expressing their love of
country through observance of the flag ceremony. They quietly stand at attention during the flag
ceremony to show their respect for the right of those who choose to participate in the solemn
proceedings. Since they do not engage in disruptive behavior, there is no warrant for their expulsion.

Issue:

Whether or not the expulsion of the members of Jehovahs Witness from the schools violates right receive
free education.

Held:

The expulsion of the members of Jehovahs Witness from the schools where they are enrolled will violate
their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty of
the state to protect and promote the right of all citizens to quality education, and to make such education
accessible to all (Sec. I, Art XIV). Nevertheless, their right not to participate in the Flag Ceremony does
not give them a right to disrupt such patriotic exercises. If they quietly stand at attention during flag
ceremony while their classmates and teachers salute the flag, sing the national anthem and recite the
patriotic pledge, we do not see how such conduct may possibly disturb the peace, or pose a grave and
present danger of a serious evil to public safety, public morals, public health or any legitimate public
interest that the state has a right and duty to prevent.

It is appropriate to recall the Japanese occupation of our country in 1942-1944 when every Filipino,
regardless of religious persuasion, in fear of the invader, saluted the Japanese flag and bowed before
every Japanese soldier, perhaps if petitioners had lived through that dark period of our history, they would
not quibble now about saluting the Phil. Flag.

The petitions for certiorari and prohibition are granted and expulsion orders are hereby annulled and set
aside.
 CHURCH OF THE LUKUMI BABALU AYE v. HIALEAH
Term:
1990-1999
o 1992
Location: City Council of Hialeah
Facts of the Case
The Church of Lukumi Babalu Aye practiced the Afro-Caribbean-based religion of Santeria. Santeria used
animal sacrifice as a form of worship in which an animal's carotid arteries would be cut and, except during
healing and death rights, the animal would be eaten. Shortly after the announcement of the establishment
of a Santeria church in Hialeah, Florida, the city council adopted several ordinances addressing religious
sacrifice. The ordinances prohibited possession of animals for sacrifice or slaughter, with specific
exemptions for state-licensed activities.

Question
Did the city of Hialeah's ordinance, prohibiting ritual animal sacrifices, violate the First Amendment's Free
Exercise Clause?

Argument
Church of the Lukumi Babalu Aye v. Hialeah - Oral Argument
Conclusion
Decision: 9 votes for Church of the Lukumi Babalu Aye, 0 vote(s) against
Legal provision: Free Exercise of Religion
Yes. The Court held that the ordinances were neither neutral nor generally applicable. The ordinances
had to be justified by a compelling governmental interest and they had to be narrowly tailored to that
interest. The core failure of the ordinances were that they applied exclusively to the church. The
ordinances singled out the activities of the Santeria faith and suppressed more religious conduct than was
necessary to achieve their stated ends. Only conduct tied to religious belief was burdened. The
ordinances targeted religious behavior, therefore they failed to survive the rigors of strict strutiny.
MELY TANGONAN, petitioner,
vs.
HON. JUDGE ERNANI CRUZ PAO, CAPITOL MEDICAL CENTER SCHOOL OF NURSING,
THELMA N. CLEMENTE, SENAMAR L. PURA and ADELAIDA SULIT, respondents.

Genaro B. Laya for petitioner.

Lorenzo P. Miravite for private respondents.

CUEVAS, J.:

Alleging that the Hon. respondent Judge 1 acted without or in excess of jurisdiction and/or with grave
abuse of discretion in dismissing 2 her petition for mandamus 3 petitioner comes to Us thru the instant
petition for "Certiorari with Preliminary Mandatory Injunction with Damages" 4 raising the following issues

1. Is his Honor guilty of grave abuse of discretion when he rendered the questioned decision without
any formal hearing ?

2. Is the extraordinary remedy of mandamus available to an aggrieved party who was refused
enrolment without lawful ground . . . expelled by private respondents without affording her the
opportunity to be heard . . . and excluded from enrolling, while allowing others similarly situated, to
enroll? and

3. Finally, is the decision of the respondent court conformable to law and the evidence?

Hereunder are the pertinent antecedents.

Petitioner Mely Tangonan was temporarily admitted in May 1975 at the Capitol Medical School of
Nursing for the school year 1975-1976, as a second year student subject to the submission of
a sealed "Honorable Dismissal" and a "Transcript of Records" valid for transfer. Her admission in
said school was on probationary basis having merely submitted an unsealed "Honorable Dismissal"
and a "Transcript of Records" not valid for transfer, on her promise that such records will be
immediately replaced with official acceptable records. She enrolled for two (2) semesters. In her
second semester, she flunked in Psychiatric Nursing but was allowed to cross-enroll in said subject
in Summer 1976 at the De Ocampo Memorial School. Obviously, petitioner had enrolment problems
at the De Ocampo Memorial School for she was reported to have attempted to bribe Dean Florencia
Pagador of the said school so that her name could be included in the list of Summer 1976 enrolled
students. This is confirmed by petitioner's letter of apology which reads as follows

May 14, 1976

Mrs. Florencia Pagador

Dean of De Ocampo Memorial
School of Nursing,
Nagtahan St., Sta. Mesa Blvd.
Sampaloc, Manila

Dear Ma'm:

I am awfully sorry for offering you P50,00 just to help me. I hope and pray for your
forgiveness. I wish to express my sincere apology. And please allow me to get
enrolled officially,

Thank you.

Sincerel
y yours,

(Sgd)
MISS
MELY
TANGO
NAN

On June 14, 1976, petitioner applied for re-enrolment at respondent school (Capitol Medical Center
School of Nursing) but was referred to the Guidance Counsellor for the following reasons

a. On the replacement of her admission records when she first enrolled in May 1976;

b. On the results of her cross-enrolment for summer 1976; and

c. For explanation of a reported charge (supported by a Xerox copy of her apology to Dean Pagador)
of attempting to bribe Dean Pagador.

Because of her refusal and/or failure, to submit the required explanation, the matter of her re-
admission was submitted to the school's Board of Admission. Deliberating on petitioner's case, the
Board of Admission, in a Meeting held on June 25, 1976, 5 made the following recommendation

RECOMMENDATION:

In view of the foregoing findings, the Board of Admission declared her an undesirable
student who should not be readmitted to CMCSN but without prejudice to her being
given transfer credentials to another school.

SUBMITTED BY:

(Sgd) Benita Cortez

Minutes of the Board's deliberation on the matter which brought about said recommendation runs
thus

AGENDA: Case of Mely Tangonan, nursing student who is seeking re-admission to

the School of Nursing.

Findings: During the deliberation of the Board, the following findings were discussed:

A. ACADEMIC PERFORMANCE I

1. Admitted to the school on probation because of a failing mark in Communicable

Disease Nursing at the PCC-Mary Johnston Hospital School of Nursing. EXHIBIT A)

2. Failed in Psychiatric Nursing during the second semester of School Year 1975-
1976. EXHIBIT B)

B. CLINICAL PERFORMANCE

1. Average in the clinical performance.

2. Did not complete clinical experience required in summer. Stopped reporting in the
clinical area without notifying the clinical instructor or coordinator. (EXHIBIT C)

3. had frequent absences in the clinical area.

C. ATTITUDES AND BEHAVIORS

1. Did not seek enrolment or notify school registrar of a desire to enroll during the
scheduled registration dates for seniors. Came to enroll daring the week after regular
classes. (EXHIBIT D)

2. Tried to bribe Mrs. Pagador, Dean, College of Nursing, De Ocampo Memorial

School with P50.00 (Fifty Pesos) when she was not yet officially enrolled when it was
already the end of summer- classes. EXHIBIT E)

3. Violated rules and regulations of the school.(EXHIBIT F)

4. Refused to write a letter to the Board of Admission requesting for re-admission and
apologizing for what she did against the Doms and Dean Pagador which has brought
embarrasment to CMCSN She was asked to make this letter to the Principal through
a telephone instruction to Mrs. Benita Cortez. Miss Tangonan allegedly stated that
she would write the letter only if she is given the assurance by the Principal or by the
Chairman of the Board of Trustees that she would be allowed to enroll.

Informed of the said board's decision disallowing her re-admission, petitioner lodged a complaint
against the school before the Department of Education, Regional Office No. 4. A conference was
accordingly conducted between petitioner and respondent school's authorities in the presence of
Regional Director Manuel in the course of which, petitioner agreed to transfer to another school. But
instead of transferring to another school, petitioner filed a petition for mandamus 6 before the Court of
First Instance of Rizal, Branch XVIII, presided over by respondent Judge, praying that pending
adjudication of the case on the merit, an ex-parte order be issued commanding respondents to admit
petitioner to enroll and attend classes upon payment of the prescribed fees; and after hearing, judgment
be rendered requiring respondents to pay damages and attorney's fees.

On July 27, 1977, the lower court issued the writ prayed for thereby "ordering respondents to admit
petitioner on probation basis for the school year 1976-1977 upon payment of the requisite fees and
to attend classes" in respondent school. 7

In their Answer 8 filed on August 5, 1976, respondents alleged among others, by way of special defenses

 That the then petition states no cause of action because of the following
circumstances:

a. Petitioner in the July 2, 1976 meeting at the office of Dr. Manuel already agreed to
transfer to another school and therefore without condition, foreclosed her right to
enroll at respondent school;

b. There has been no demand after July 1, 1976 by petitioner directed to respondent
school to admit her as required in mandamus action;

c. To the extent, allowed by regulations and considering that petitioner was not yet an
enrolled student, and hence the school had no jurisdiction vet to conduct any formal
investigation and compel her presence therein, petitioner was given all the
opportunity as early as June 14, 1976 to explain her side which privilege she
however refused to take advantage of, by being adamant in submitting any
explanation, oral or in writing to certain offenses made known to her, after having
been compelled continuously to do so at several levels by respondents.

That it is within the prerogative of private schools to deny admission of students for
scholastic insufficiency, incomplete scholastic records and commission of an offense,
like attempt to bribe, violating school regulations.

The issues having been joined, the case was calendared for pre-trial on September 22, 1976. The
parties submitted their respective pre-trial briefs. 9 A second pre-trial conference was held on October
7, 1976 on which date, the court a quo issued the following Order 10

This is a second pre-trial conference of this case attended by the parties and their
respective counsel.

Considering that this is a petition for mandamus so that the issue is limited to one of
law, which is the question of whether respondent school had any legal ground for
refusing the petitioner, Mely 'Tangonan, and therefore there is no factual issue
involved, the parties are directed to submit to this Court not later than October 18,
1976, their respective affidavits and other pertinent documents they may wish to
submit, in addition to what already appears on record, 'This is however, without
prejudice to the continuous effort of both parties to settle this case. In this
connection, the respondents have undertaken to persuade some other nursing
schools in Metro Manila to admit the petitioner. If the plaintiff should agree to such
admission to some other school, then this Court will dismiss this case if appropriate
manifestations are made prior to October 22, 1976, otherwise, the Court will decide
the case on the merits before October 22, 1976.

On October 8, 1976, respondents submitted a MANIFESTATION 11 stating therein that upon

representations of respondent Dra. Thelma Clemente, President and Chairman of the Board of Trustees
of respondent school, the College of Nursing of the Ortaez University was willing to accept petitioner for
enrolment therein, subject to the approval of the Department of Education and Culture.

On October 18, 1976, petitioner and respondents submitted their respective memoranda. 12

To the manifestation of respondent Thelma Clemente that Ortaez university was willing to admit
petitioner, the latter counter-manifested 13 that "in view of certain policies and requirements of Ortaez
University she has no recourse but to demand her admission in Capitol Medical Center School of Nursing.

On October 22, 1976, the lower court rendered its decision 14 dismissing the petition and dissolving the
writ of preliminary mandatory injunction earlier issued. Petitioner's motion for reconsideration 15 having
been denied, 16 she now comes before Us through the instant petition with the prayers aforesaid.

The petition is devoid of merit.

Petitioner's case in the court below is that of mandamus, to compel respondent to admit petitioner in
its School of Nursing. Under Rule 65, Section 3 of the Rules of Court, mandamus lies under any of
the following cases: (1) against any tribunal which unlawfully neglects the performance of an act
which the law specifically enjoins as a duty; (2) in case any corporation, board or person unlawfully
neglects the performance of an act which the law enjoins as a duty resulting from an office, trust or
station; and (3) in case any tribunal, corporation, board or person unlawfully excludes another from
the use and enjoyment of a right or office to which such other is legally entitled and there is no other
plain, speedy and adequate remedy in the ordinary course of law. 17

Mandamus is employed to compel the performance, when refused of a ministerial duly, this being its
main objective. It does not lie to require anyone to fulfill contractual obligations or to compel a course
of conduct, 18 nor to control or review the exercise of discretion. 19

On the part of the party petitioner, 20 it is essential to the issuance of a writ of mandamus that he should
have a clear legal right to the thing demanded and it must be the imperative duty of the respondent to
perform the act required. It never issues in doubtful cases. While it may not be necessary that the duty be
absolutely expressed, it must however, be clear. If the writ will not issue to compel an official to do
anything which it is not his duty to do or to which it is his duty not to do, or give to the applicant anything
to which he is not entitled by law. The writ neither confers powers nor imposes duties. It is simply a
command to exercise a power already possessed and to perform a duty already imposed. 21

In the case at bar, the petitioner has miserably failed to show a clear legal right to be admitted and
be enrolled in respondent's School of Nursing. As correctly held by the court a quo

Moreover assuming that respondent has a leal duty to enroll petitioner, it does not
appear to this Court that this is merely a ministerial duty; it is rather a duty involving
the exercise of discretion. Every school has a right to determine who are the students
it should accept for enrolment. It has the right to judge the fitness of students This is
particularly true in the case of nursing students who perform essential health
services. Over and above its responsibility to petitioner is the responsibility of the
school to the general public and the community. This Court take judicial notice that
nursing has become a popular course because of the great demand for Filipino
Nurses abroad, especially in the United States. It is essential therefore that Nursing
graduates who go abroad and become in a sense our own ambassador should be
highly qualified to perform their tasks. This is the responsibility of our school and in
the discharge of this responsibility, they certainly should be given the greatest
latitude in formulating their admission policies.

While petitioner questions the findings of respondent school as to her academic

competence, the Court cannot find any legal jurisdiction to interfere in the exercise of
judgment of the school on this matter. The Court finds it significant that even the
Department of Education and Culture refused to intervene in this case although the
Court qqqin its Order of July 6, 1976 invited the Department to send its legal officer
as earlier mentioned, it is not disputed that petitioner agreed to transfer to another
school during a conference held at the Department.

The Court, after weighing all the facts, does not find that the p resent case is one that
calls for the application of Article 26 of the Declaration of Human Rights. She is not
being prevented from completing her Nursing course. There are many nursing
schools in Metropolitan Manila where she can finish her course. But she must enroll
under the term, policies and conditions imposed by the schools, rather than on her
own terms. She is moreover free to enroll in any of these schools. Respondent has
not prevented her from doing so, and has offered to assist in such transfer.

On the contrary, respondent School appeared perfectly justified in refusing to admit petitioner in its
School of Nursing. Its refusal is sanctioned by law. Section 107 of the Manual Regulations for Private
Schools considers academic delinquency and violation of disciplinary regulations as valid grounds
for refusing re-enrolment of a student. It is incontrovertible that petitioner flunked in Psychiatric
Nursing and that as of June 14, 1976, no official report of grades for her summer course in the said
subject was or could be submitted by her, Likewise, undisputed, (in fact admitted in her letter of
apology earlier quoted) is her involvement in an attempt to bribe the dean of the De Ocampo School
of Nursing. She was admitted in respondent's school merely on probation because she could not
submit a sealed "Honorable Dismissal" and "Transcript of Records" valid for transfer. On top of that
she had a failing grade in Communicable Disease Nursing at the PCC-Mary Johnston Hospital
School of Nursing. Her records in respondent's school also show that she did not complete the
prescribed clinical experience required in summer. She stopped reporting in the clinical area without
notifying the clinical instructor or coordinator. 22
The foregoing notwithstanding, still petitioner would want Us to compel respondent school to enroll
her despite her failure to meet the standard policies and qualifications set by the school. To grant
such relief would be doing violence to the academic freedom enjoyed by the respondent school
enshrined under Article XV, Section 8, Par. 2 of our Constitution which mandates "that all institutions
of higher learning shall enjoy academic freedom." This institutional academic freedom includes not
only the freedom of professionally qualified persons to inquire, discover, publish and teach the truth
as they see it in the field of their competence subject to no control or authority except of rational
methods by which truths and conclusions are sought and established in these disciplines, but also
the right of the school or college to decide for itself, its aims and objectives, and how best to attain
themthe grant being to institutions of higher learningfree from outside coercion or interference
save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of
autonomy certainly extending to the choice of students. Said constitutional provision is not to be
construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose and
nullify its intent. 23

Elaborating further on the subject, this Court speaking thru that Eminent Constitutionalist then Mr.
Justice now the Hon. Chief Justice Enrique M. Fernando 24 held

Petitioner cannot compel by mandamus, the respondent to admit her into further
studies in the Loyola School of Theology. For respondent has no clear duly to admit
the petitioner. The Loyola School of Theology is a seminary for the priesthood.
Petitioner is admittedly and obviously not studying for the priesthood, she being a lay
person and a woman. And even assuming ex gratia argumenti that she is qualified to
study for the priesthood, there is still no duty on the part of respondent to admit her to
said studies, since the school has clearly the discretion to turn down even qualified
applicants due to limitations of space, facilities, professors and optimum classroom
size and component considerations. No authorities were cited, respondent
apparently being of the view that the law has not reached the stage when the matter
of admission to an institution of higher learning rests on the sole and uncontrolled
discretion of the applicant. There are standards that must be met. There are policies
to be pursued. Discretion appears to be of the essence. In terms of Hohfeld's
terminology, what a student in the position of the petitioner possesses is a privilege
rather than a right. She cannot therefore satisfy the prime and indispensable
requisite of a mandamus proceeding. (Emphasis supplied)

Anent petitioner's submittal that respondent Judge acted without or in excess of jurisdiction or with
grave abuse of discretion in requiring the parties to submit memoranda or affidavits, instead of
setting the case for a formal hearing on the meritsWe find the same to be without merit. The very
nature of the petition dictates its expeditious determination. This is implicit from Section 7, Rule 65 of
the Rules of Court which provides:

Section 7. Expediting Proceedings; Preliminary Injunction.The court in which the

petition is filed, or a judge thereof, may make orders expediting the proceedings, and
may also grant a preliminary injunction for the preservation of the rights of the parties
pending such proceedings.

In the case at bar, it was evident that on the basis of the pleadings filed, the case did not call for the
formal presentation of evidence for purposes of determining whether or not respondent school could
legally be ordered to admit petitioner for the school year 1976-1977. Petitioner's position appeared
clearly stated in her basic petition which was further amplified by her verified Position Paper dated
July 8, 1976: REPLY to the position paper of respondents dates July 23, 1976, petitioner's Trial Brief
dated September 9, 1976 and Memorandum dated October 18, 1976. Upon the other hand,
respondents' stance appeared thoroughly spelled out in their position paper dated July 21, 1976,
Answer dated August 5, 1976, respondent's Pre-Trial Brief dated September 20, 1976, Manifestation
dated October 8, 1976 and Memorandum dated October 18, 1976. Moreover, in the second pre-trial
conference held on October 7, 1976, the lower court declared that "the issue is one of law and that
there is no factual issue involved. Hence, the parties were already required to submit their
memoranda and the pertinent documents in support of their respective stand. Petitioner did not
question the aforesaid order. Instead, she filed her memorandum. Consequently, she is now
estopped from asserting that she was denied the chance to present her evidence in a formal
hearing.

At any rate, as discussed earlier, petitioner is not legally entitled to the issuance of the writ prayed
for.
WHEREFORE, the instant petition is DISMISSED without pronouncement as to costs.

SO ORDERED.

Concepcion, Jr., Abad Santos and Escolin JJ., concur.

Aquino, J., I concur.

Makasiar, J., concurs in the result.

ALEJANDRO ESTRADA vs. SOLEDAD S. ESCRITOR

A.M. No. P-02-1651. August 4, 2003.

FACTS:
Soledad S. Escritor, a court interpreter, admittedly while still married to another, cohabited to Luciano
Quilapio, Jr. since 1980, who was himself married to another. Escritor and Quilapio had a nineteen-
year old son. Alejandro Estrada, the private complainant herein, was not personally related to
Escritor nor did he personally know her. However, he wanted the Court to declare the relationship of
Escritor with Quilapio as immoral in consonance with the pertinent provision of the Administrative
Code. In her defense, Escritor contended that under the rules of the Jehovah's Witnesses, a
religious sect of whom she is a member, the act of signing a Declaration Pledging Faithfulness, is
sufficient to legitimize a union which would otherwise be classified as adulterous and bigamous.
Escritor and Quilapio's declarations are recorded in the Watch Tower Central office. They were
executed in the usual and approved form prescribed by the Watch Tower Bible and Tract Society
which was lifted from the article, "Maintaining Marriage in Honor Before God and Men," in the March
15, 1977 issue of the Watch Tower magazine, entitled The Watchtower. Escritor alleged that in
compliance with the foregoing rules, she and her partner signed the Declaration Pledging
Faithfulness in 1991, and by virtue of such act, they are for all purposes, regarded as husband and
wife by the religious denomination of which they are devout adherents. Although in 1998 Escritor
was widowed, thereby lifting the legal impediment to marry on her part, her mate is still not
capacitated to remarry. Thus, their declarations remain valid. Once all legal impediments for both are
lifted, the couple can already register their marriage with the civil authorities and the validity of the
declarations ceases. The elders in the congregations can then solemnize their marriage as
authorized by Philippine law. In sum, therefore, insofar as the congregation is concerned, there is
nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain
members in good standing in the congregation.

ISSUE:
Whether or not respondent's right to religious freedom should carve out an exception from the
prevailing jurisprudence on illicit relations for which government employees are held administratively
liable.

HELD:
While Escritor's cohabitation with Quilapio conforms to the religious beliefs of the Jehovah's
Witnesses, the cohabitation violates Article 334 of the Revised Penal Code. The State cannot
interfere with the religious beliefs of the Jehovah's Witnesses, in the same way that the Jehovah's
Witnesses cannot interfere with the State's prohibition on concubinage. The free exercise of religion
protects practices based on religious grounds provided such practices do not violate existing laws
enacted in the reasonable exercise of the State's police power. Under the Revised Administrative
Code of 1987, one of the grounds for disciplinary action is "conduct prejudicial to the best interest of
the service." The penalty for a first offense is suspension of six months and one day to one year. A
second offense is punishable with dismissal from the service. Escritor, however, deserves the same
compassionate treatment accorded to a similarly situated court employee in De Dios v. Alejo if
Escritor should end her unlawful relationship with Quilapio. In De Dios, the Court, in deciding not to
dismiss an employee because he finally terminated his cohabitation with another woman Given the
circumstances, it would deem unduly harsh to penalize Escritor for cohabiting for the last 23 years
with a man she believes is her husband and she knows is the father of her son. No third party has
claimed or suffered injury because of their cohabitation. On the contrary, suspending or even
dismissing her for her continued cohabitation would only work hardship on her family. Accordingly,
respondent Soledad S. Escritor is suspended for six months and one day without pay for conduct
prejudicial to the best interest of the service. However, the suspension shall be lifted immediately
upon Escritor's manifestation to this Court that she has ceased cohabiting with Luciano D. Quilapio,
Jr. Moreover, respondent Escritor is warned that her continued cohabitation with Quilapio, during or
after her suspension and while Quilapio's marriage with his legal wife still subsists, shall merit the
penalty of dismissal from the service.

United States Court of Appeals,Eighth Circuit.

UNITED STATES of America, PlaintiffAppellant, v. Roman CAVANAUGH, Jr., DefendantAppellee.

No. 101154.

Decided: July 6, 2011

Before RILEY, Chief Judge, MELLOY and BYE, Circuit Judges. Richard A. Friedman, argued, Washington
DC (Keith W. Reisenauer, Jane Mae Morley, AUSA, Fargo, ND, on the brief), for PlaintiffAppellant.
Alexander F. Reichert, argued, Grand Forks, ND, for DefendantAppellee.

Roman Cavanaugh, Jr., was charged for the offense of domestic assault by a habitual offender, 18 U.S.C.
117. As elements of the offense, the government must prove Cavanaugh received a final conviction on
at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for certain abuse
offenses. Id. 117(a). Below, the district court dismissed the indictment because, although Cavanaugh
had received prior misdemeanor abuse convictions in tribal court on three separate occasions,
Cavanaugh had not received the benefit of appointed counsel in the proceedings that resulted in the
convictions.

The issues presented in this appeal are whether the Fifth or Sixth Amendments to the United States
Constitution preclude the use of these prior tribal-court misdemeanor convictions as predicate convictions
to establish the habitual-offender elements of 117. Cavanaugh's prior convictions resulted in actual
incarceration that, pursuant to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963),
and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), would have been
unconstitutional in violation of the Sixth Amendment right to appointed counsel if the convictions had
originated in a state or federal court. The district court, recognizing that the Sixth Amendment imposes no
duty on Indian tribes to provide counsel for indigent defendants, noted that the prior convictions were valid
at their inception and that the prior terms of incarceration were not in violation of the United States
Constitution, tribal law, or the Indian Civil Rights Act, 25 U.S.C. 1302. The court, nevertheless, held that
the uncounseled convictions were infirm for the purpose of proving the habitual-offender, predicate-
conviction elements of the 117 offense in these subsequent federal court proceedings.

The government appeals, and we reverse. In doing so, we note an apparent inconsistency in several
cases dealing with the use of arguably infirm prior judgments to establish guilt, trigger a sentencing
enhancement, or determine a sentence for a subsequent offense. Ultimately, however, we are persuaded
in this case that the predicate convictions, valid at their inception, and not alleged to be otherwise
unreliable, may be used to prove the elements of 117.

I. Background
Cavanaugh is an enrolled member of the Spirit Lake Sioux Tribe and a repeat domestic-abuse offender.
He was convicted in the Spirit Lake Tribal Court of misdemeanor domestic abuse offenses in March 2005,
April 2005 (two counts), and January 2008. In all three cases, he was advised of his right to retain
counsel at his own expense, but he did not do so. He alleges in the present case that he was indigent at
the time of his prior convictions.1 Importantly, Cavanaugh does not allege any irregularities in the
proceedings that led to his prior tribal-court convictions beyond the absence of counsel. The Spirit Lake
Tribal Court provides an appeal procedure, but Cavanaugh did not appeal his tribal-court convictions.
Neither Cavanaugh nor the government state whether officials actually advised Cavanaugh of his right to
appeal his tribal-court convictions. Cavanaugh, however, does not assert deprivation of tribal appellate
rights as an irregularity or infirmity surrounding his prior convictions.

The conduct giving rise to the present offense involved Cavanaugh's assault of his common-law wife who
is also the mother of his child. On the night of the offense, Cavanaugh and the victim were together in a
car with children, Cavanaugh was driving, both adults were intoxicated, and Cavanaugh and the victim
began fighting. In the course of the fight, Cavanaugh grabbed the victim's head, jerked it back and forth,
and slammed it into the dashboard. He also threatened to kill her. Cavanaugh then pulled the car into a
field, where the victim jumped from the vehicle and hid. Cavanaugh eventually drove away. Authorities
subsequently arrested Cavanaugh and charged him with the present offense.

In reaching its decision that Cavanaugh's prior tribal-court convictions could not be used to satisfy the
elements of 117, the district court reviewed relevant federal caselaw regarding the permissible and
impermissible uses of prior convictions. The court also addressed at some length the conditions of
heightened violence and drug and alcohol abuse on Indian lands when compared to national averages.
The court reviewed the legislative history of 117, and noted concern with the high level of recidivism
associated with domestic abusers as well as the often-increasing severity of such offenders' subsequent
violent acts. The court concluded that Congress passed 117, in part, as a gap-filling measure to capture
repeat misdemeanor domestic-abuse offenders in a federal recidivist scheme that, generally, had applied
only to persons convicted of felonies. The district court's review of the legislative history makes it clear
that situations involving facts like those alleged in Cavanaugh's case are precisely the type of situations
Congress intended to bring within the bounds of 117.

The court also noted at some length the shortcomings of tribal justice systems caused by a lack of
resources, the ongoing lack of resources to overcome these shortcomings, the evolving relationship
between federal criminal jurisdiction and tribal jurisdiction, and the changes in the general policies of the
United States towards tribal justice systems over the decades. The court ultimately concluded that,
although uncounseled tribal misdemeanor convictions could result in actual incarceration in tribal facilities,
such incarceration involved no violation of the United States Constitution because the Bill of Rights and
the Fourteenth Amendment do not apply to Indian tribes and because the Indian Civil Rights Act does not
impose upon tribes a duty to provide counsel for indigent misdemeanor defendants. The court held,
nevertheless, that such convictions could not be used in federal courts to prove the elements of a criminal
offense because the right to counsel applies in federal courts and because use of such convictions would,
essentially, give rise anew to a Sixth Amendment violation by imposing federal punishment, in part, based
upon the uncounseled conviction.

II. Discussion

A. Validity of Cavanaugh's Prior Convictions

Although the district court did not find Cavanaugh's tribal-court convictions invalid from their inception,
Cavanaugh argues they were invalid from their inception because the tribal court did not provide court-
appointed counsel. This argument is without merit. Although Indians are citizens of the United States
entitled to the same constitutional protections against federal and state action as all citizens, the
Constitution does not apply to restrict the actions of Indian tribes as separate, quasi-sovereign bodies.
See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (As separate
sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those
constitutional provisions framed specifically as limitations on federal or state authority.); Twin Cities
Chippewa Tribal Council v. Minn. Chippewa Tribe, 370 F.2d 529, 533 (8th Cir.1967) (The guarantees of
the Due Process clause relate solely to action by a state government and have no application to actions
of Indian Tribes, acting as such.) (internal citations omitted).

Congress, however, enjoys broad power to regulate tribal affairs and limit or expand tribal sovereignty
through the Indian Commerce Clause, U.S. Const. art. I, 8, cl. 3, and the Treaty Clause, art. II, 2, cl. 2.
See United States v. Lara, 541 U.S. 193, 200, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004). Pursuant to this
authority, Congress passed the Indian Civil Rights Act, selectively applying some, but not all, protections
from the Bill of Rights to situations where an Indian tribe is the governmental actor. See Pub.L. No. 90
284, Title II, 202, 82 Stat. 77 (1968) (codified in part at 25 U.S.C. 1302). As currently amended by the
Tribal Law and Order Act of 2010, Pub.L. No. 111211, Title II, 234(a), 124 Stat. 2279 (2010), the Indian
Civil Rights Act only requires the appointment of counsel for indigent criminal defendants in tribal court for
prosecutions that result in a term of incarceration greater than one year. See 25 U.S.C. 1302(a)(6), (b),
& (c)(2).2 Accordingly, if a tribe elects not to provide for the right to appointed counsel through its own
laws, Indian defendants in tribal court have no Constitutional or statutory right to appointed counsel
unless sentenced to a term of incarceration greater than one year.

The tension inherent in the present case arises when such a convictionvalid at its inception as a matter
of federal and tribal statutory law and as a matter of Constitutional lawis brought into federal or state
court in an effort to establish or enhance a term of federal or state incarceration. This tension exists
because the tribal-court ability to impose a term of incarceration of up to one year based upon an
uncounseled conviction is inconsistent with Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d
799 (1963), and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). These cases, as
explained more fully below, hold that federal and state courts cannot constitutionally impose any term of
incarceration at the time of a conviction unless a defendant received, or validly waived the right to,
counsel.

The government argues that, because Cavanaugh's prior convictions were valid from their inception, the
convictions should be valid for use in federal court to prove the elements of the present 117 violation.
Cavanaugh argues that, because the convictions would have been invalid if obtained in state or federal
court, where the Sixth Amendment does apply, we should treat his prior convictions as infirm for use in
federal court. These arguments raise two separate issues. First, whether Cavanaugh is correct that state
or federal convictions, in and of themselves, would have been invalid for the purpose of proving a
subsequent 117 violation had they arisen in these circumstances or whether such state or federal
convictions would be valid for such purposes (with only the prior terms of incarceration, rather than the
convictions themselves, being unconstitutional). See Lewis v. United States, 445 U.S. 55, 6667, 100
S.Ct. 915, 63 L.Ed.2d 198 (1980) (We recognize, of course, that under the Sixth Amendment an
uncounseled felony conviction cannot be used for certain purposes The Court, however, has never
suggested that an uncounseled conviction is invalid for all purposes. (internal citations omitted)). Second,
assuming such state or federal convictions would be infirm as 117 predicates, whether a similar, but
otherwise valid tribal conviction should be treated as infirm for such purposes even though it technically
was not unconstitutional.

As to the first question, we believe it is helpful to address the relevant Supreme Court and Eighth Circuit
precedent involving the scope of the Sixth Amendment right to counsel and also those cases addressing
limitations on the uses of arguably infirm prior judgments for recidivist or enhancement purposes. This
review, however, does not provide a conclusive answer to the question of whether an uncounseled state
or federal conviction could be used to prove the elements of a 117 violation in this situation. This review
does, in our view, provide guidance for answering the question of whether we should treat an otherwise
valid tribal-court conviction as invalid for present purposes.

B. Sixth Amendment Right to Counsel and Limitations on the Use of Uncounseled State or Federal
Convictions.

The Supreme Court interpreted the Sixth Amendment as requiring court-appointed counsel for indigent
federal defendants in Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In Betts
v. Brady, 316 U.S. 455, 47172, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), the Court held that this Sixth
Amendment right did not apply as against the states. The Court reconsidered the holding of Betts,
however, in Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and held that
this Sixth Amendment right to counsel applies as against the states through the Fourteenth Amendment.
Gideon described the fundamental nature of this right by explaining how the absence of counsel called
into question the reliability of any resulting conviction:

Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the
skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires
the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not
guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Gideon, 372 U.S. at 345 (quoting Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).
Subsequently, in a line of cases that culminated with Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006,
32 L.Ed.2d 530 (1972), the Court explained the limitations of this right. The circuits, however, found
Argersinger to be unclear, and in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the
Court revisited the issue, clarifying Argersinger and unambiguously holding that the right to counsel is
violated when a defendant is sentenced to any term of incarceration: it is the actual deprivation of liberty,
not the jeopardy of a deprivation of liberty, not some lesser form of punishment, and not any particular
length of incarceration that triggers the protections of the Sixth Amendment. Scott, 440 U.S. at 37374
(affirming an uncounseled conviction not resulting in imprisonment and stating, We therefore hold that
the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent
criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to
assistance of appointed counsel in his defense); see also Glover v. United States, 531 U.S. 198, 203,
121 S.Ct. 696, 148 L.Ed.2d 604 (2001) ([A]ny amount of actual jail time has Sixth Amendment
significance.).

Our court, and other courts, have put Scott into practice by vacating sentences, but leaving convictions
intact, where the government obtained convictions and sentences of incarceration without providing
counsel. See, e.g., United States v. White, 529 F.2d 1390, 1394 (8th Cir.1976) (Although the conviction is
valid, we cannot affirm his 90day suspended prison term since appellant did not clearly waive his right to
counsel Therefore, we vacate the 90day suspended sentence but affirm the conviction and $50 fine.);
see also United States v. Ortega, 94 F.3d 764, 770 (2d Cir.1996) (At the outset, we reject defendants-
appellants' contention that their state court convictions are invalid. Under Scott, the Sixth Amendment
protects an uncounseled misdemeanor defendant not from a judgment of conviction but from the
imposition of certain types of sentences. The appropriate remedy for a Scott violation, therefore, is
vacatur of the invalid portion of the sentence, and not reversal of the conviction itself.). This treatment of
Scott, however, fails to answer the question of whether or how a subsequent court might be able to make
use of such a conviction for enhancement purposes or to prove the elements of a recidivist offense.

After Gideon, and before Scott, the Supreme Court initially determined that several different uses of infirm
prior convictions were impermissible during subsequent proceedings if the earlier convictions were
obtained in violation of the right to counsel. In Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19
L.Ed.2d 319 (1967), for example, the Court held that an uncounseled prior felony conviction could not be
used to enhance a defendant's punishment pursuant to a recidivist statute. In United States v. Tucker, 404
U.S. 443, 444, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Court held a sentencing judge could not consider
a prior uncounseled felony conviction in setting a federal sentence pursuant to the then-prevailing, federal
sentencing regime. Also, in Loper v. Beto, 405 U.S. 473, 484, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), the
Court held prosecutors could not impeach a defendant with a prior, uncounseled felony conviction. These
cases seem to have reflected a general belief that it was necessary to prevent erosion of the principle of
Gideon and that the earlier deprivation of counsel, essentially, flowed through to the subsequent
proceeding to make any future punishment or enhancement of punishment obtained in reliance on the
earlier conviction a new violation of Gideon. For example, the Court in Burgett stated:

To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to
support guilt or enhance punishment for another offense is to erode the principle of that case. Worse yet,
since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers
anew from the deprivation of that Sixth Amendment right.

Burgett, 389 U.S. at 115 (internal citation omitted) (emphasis added).

The penultimate case in this line of cases arguably was Baldasar v. Illinois, 446 U.S. 222, 22728, 100
S.Ct. 1585, 64 L.Ed.2d 169 (1980), in which the Court held, post-Scott, that an uncounseled
misdemeanor conviction that resulted in no term of incarceration (and therefore, as per Scott, involved no
deprivation of constitutional rights) nevertheless could not be used to enhance a subsequent Illinois
misdemeanor into a felony under the state's enhancement statute. Baldasar, however, was a fractured
opinion within which the plurality opinion merely referenced the rationale of the concurrence, but in which
there were separate concurrences without wholly consistent explanations for their results. One of the
concurrences based its conclusion in part on reliability concerns, noting, We should not lose sight of the
underlying rationale of Argersinger, that unless an accused has the guiding hand of counsel at every step
in the proceedings against him, his conviction is not sufficiently reliable to support the severe sanction of
imprisonment. Baldasar, 446 U.S. at 227 (Marshall, J., concurring) (internal citation omitted).

If Baldasar had been the last word on this subject, Cavanaugh's position would, indeed, be strong in this
appeal. Baldasar actually precluded the use of a prior uncounseled conviction even though the prior
conviction did not involve a constitutional violation; Cavanaugh, similarly, seeks to preclude the use of his
prior uncounseled conviction even though his prior conviction did not involve a constitutional violation.
Further, to the extent Baldasar rested on reliability concerns, the absence of counsel arguably would
result in the same type of reliability concern regardless of whether the denial of counsel occurred in state,
federal, or tribal court or actually resulted in a constitutional violation.

Baldasar was not the last word, however, because in 1994, the Court held that an uncounseled conviction
could be used for enhancement purposes, expressly overruling Baldasar. See Nichols v. United States,
511 U.S. 738, 74849, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (according criminal history points
pursuant to the then-mandatory United States Sentencing Guidelines for an earlier uncounseled
misdemeanor DUI conviction to determine a Guideline range for a subsequent federal drug offense,
shifting the mandatory Guidelines range upward by approximately two years, and stating, Today we
adhere to Scott v. Illinois and overrule Baldasar ). In Nichols, the uncounseled prior conviction, like the
prior conviction in Baldasar had not resulted in a constitutional violation because it had not resulted in a
term of incarceration. An important rationale from Nichols, that seemingly cannot be reconciled with the
language quoted above from Burgett, was that the subsequent use of the conviction for enhancement
purposes did not change the penalty for the prior conviction; rather, the subsequent sentence punished
only the subsequent offense.3 See Nichols, 511 U.S. at 74647 (Enhancement statutes, whether in the
nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist
statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier
conviction. As pointed out in the dissenting opinion in Baldasar, [t]his Court consistently has sustained
repeat-offender laws as penalizing only the last offense committed by the defendant. (quoting Baldasar,
446 U.S. at 232)).

Further, not only did Nichols reject the theory that some portion of a subsequent punishment could be
viewed as having been caused by a prior conviction, the majority in Nichols appears to have rejected
arguments that formed one of the foundations for Gideonarguments based on concerns about prior
convictions' reliability. We reach this conclusion because the Nichols majority made no express reference
to reliability concerns and only arguably addressed the issue by distinguishing the sentencing context
from guilt determinations. Meanwhile, a separate concurrence by Justice Souter discussing such
concerns garnered no support from any of the other Justices, 4 and the dissent in Nichols rested primarily
upon reliability concerns.5

The Court subsequently made reference again to reliability concerns, this time in Alabama v. Shelton, 535
U.S. 654, 667, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002). In Shelton, the court held that an uncounseled
conviction resulting in a suspended term of incarceration violated the Sixth Amendment. There, the Court
distinguished Nichols as a case arising in the sentencing context. Id. at 665. The Court rejected a broad
argument that sequential proceedings must always be analyzed separately for Sixth Amendment
purposes such that only immediate incarceration raises Sixth Amendment concerns. Id. at 666. Rather,
the Court stated that the Sixth Amendment applies at the time a defendant is adjudicated guilty of an
offense, whether actual incarceration is imposed contemporaneously with the finding of guilt, or later
following some subsequent triggering event. Id. at 66364. The court also rejected the argument that the
provision of counsel at a subsequent hearing surrounding the revocation of the suspended sentence and
imposition of a term of incarceration could make up for the absence of counsel at the guilt phase. The
Court stated:

We think it plain that a hearing so timed and structured cannot compensate for the absence of trial
counsel, for it does not even address the key Sixth Amendment inquiry: whether the adjudication of guilt
corresponding to the prison sentence is sufficiently reliable to permit incarceration. Deprived of counsel
when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent
probation revocation hearing, a defendant in Shelton's circumstances faces incarceration on a conviction
that has never been subjected to the crucible of meaningful adversarial testing[.] The Sixth Amendment
does not countenance this result.

Id. at 667 (internal citations omitted) (emphasis added). Although Shelton emphasized reliability concerns,
it also emphasized the presence of an actual Sixth Amendment violation, and the incarceration at issue
was incarceration for the underlying offense.

Subsequently, in 2004, our court rejected an argument by the government that Nichols would permit the
use of a prior uncounseled conviction for the purpose of assigning criminal history points under the then-
mandatory Guidelines regime where the prior conviction had resulted in actual incarceration in violation of
Scott. See United States v. Charles, 389 F.3d 797, 799 (8th Cir.2004) (The government, however,
misreads Nichols. The Court's holding was limited to the use of an uncounseled misdemeanor conviction,
valid under Scott because no prison term was imposed. Charles disputes the use of convictions as to
which a jail term was imposed, and as to which he thus had a constitutional right to counsel under Scott.)
(internal citation omitted). By emphasizing this distinction, we believe our circuit recognized that,
regardless of whether reliability-based concerns exist, it is the fact of a constitutional violation that triggers
a limitation on using a prior conviction in subsequent proceedings.
Nichols and Shelton, however, do not necessarily answer all questions regarding permissible uses of prior
convictions. Shelton was a direct appeal involving the imposition of the original suspended sentence. The
references to future imprisonment in Shelton were references to activation of the original sentence, not
references to use of the conviction to determine guilt or assess punishment for some different crime.
Nichols was a sentencing case pursuant to the then-mandatory Guidelines, which permitted at least a
modicum of discretion and, therefore, differed from the present case and the government's present
attempt to prove the actual elements of a subsequent federal offense. In this regard, we emphasize that
Nichols relied, to a large extent, on the fact that the subsequent use of the prior conviction was merely to
determine a sentence pursuant to the Guidelines rather than to establish guilt. Nichols, 511 U.S. at 747
(Reliance on such a conviction is also consistent with the traditional understanding of the sentencing
process, which we have often recognized as less exacting than the process of establishing guilt.). The
Supreme Court specifically noted that, traditionally, in the sentencing process, judges considered not only
convictions but a defendant's past criminal behavior, even if no conviction resulted from that behavior,
and that the Court previously had upheld consideration of such facts. Id. (citing Williams v. New York, 337
U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)).

Post-Nichols, then, it is arguable that the fact of an actual constitutional violation is, perhaps, not only an
important factor for determining when a prior conviction may be used for sentence enhancement
purposes, but a required or controlling factor. It also seems clear that, where the subsequent use is to
prove the actual elements of a criminal offense, Nichols is of questionable applicability, given that Court's
emphasis on the differences between sentencing and guilt determinations.

Added to this developing, but incomplete body of authority, there exists another line of cases that address
the use of prior convictions or prior civil adjudications to establish the actual elements of subsequent
offenses. These cases, however, reach results that are difficult, if not impossible, to reconcile with one
another, much less with the cases just discussed. Among these cases, the government relies in particular
on Lewis v. United States, 445 U.S. 55, 67, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), a case that predated
Nichols and permitted the use of a prior uncounseled conviction to prove an element of an offense even
though the prior conviction had resulted in incarceration in violation of Scott. Lewis held specifically that a
prior uncounseled felony conviction could be used to support a subsequent, federal conviction for
possession of a firearm by a felon (pursuant to a felon-in-possession statute that was a predecessor to 18
U.S.C. 922). Id. The Court held such a use permissible because the later federal criminal prosecution
served merely as the enforcement mechanism for a civil firearms restriction. Id. (stating that the prior
conviction was being used only to enforce an essentially civil disability through a criminal sanction and
not [to] support guilt or enhance punishment (quoting Burgett, 389 U.S. at 115)). Discussing the
reliability rational (that carried weight prior to Nichols, in cases such as Burgett, Tucker, and Beto ), the
court in Lewis stated, The federal gun laws, however, focus not on reliability but on the mere fact of
conviction, or even indictment, in order to keep firearms away from potentially dangerous persons. Id. at
67.6

Reaching an outcome difficult to reconcile with Lewis, the Court in United States v. MendozaLopez, 481
U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), later held that, in a prosecution for illegal re-entry
following a deportation, where the prior deportation is an element of the crime, id. at 833 (emphasis
added), a defendant may, during the later criminal proceedings, attack the prior civil adjudication that led
to the deportation. Id. at 84142. The alleged constitutional infirmity with the prior civil adjudication in
MendozaLopez was a due-process violation based on a denial of any meaningful procedure for
appellate review of the deportation ruling. The Court stated, [a] statute [that] envisions a court may
impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the
alien the deportation proceeding may have been, does not comport with the constitutional requirement
of due process. Id. at 837. MendozaLopez distinguished Lewis based on language from Lewis
recognizing that a convicted felon may challenge the validity of a prior conviction, or otherwise remove
his disability, before obtaining a firearm, Lewis, 445 U.S. at 67. Read broadly, however, MendozaLopez
stands for the proposition that certain constitutional infirmities in underlying proceedings make use of the
judgment from such a proceeding infirm for the purpose of proving an element of a subsequent criminal
charge. Broadly read, Lewis stands for the proposition that status is all that matters and questions
surrounding the reliability of the conviction imposing that status cannot justify barring the use of that
conviction to prove the elements of a subsequent offense.

Taken together, these casesup to and including Nichols and MendozaLopezfail to provide clear
direction as to whether an uncounseled misdemeanor conviction obtained in violation of Scott could be
used to prove the elements of a 117 offense. Nichols falls short in answering the question because it did
not involve a guilt-phase determination and because there was no actual Scott violation at issue in
Nichols. Further, as the opinion in Shelton demonstrates, there may be limits to the theory that
subsequent impositions of terms of incarceration punish only the subsequent acts (rather than alter
punishment for the earlier offense). Finally, Lewis and MendozaLopez fall short because it is not clear if
 117 is more akin to the firearms restriction involved in Lewis (for which status and the fact of conviction
were all that mattered and infirmities in the underlying conviction were held to be immaterial) or the illegal
reentry following deportation involved in MendozaLopez (for which infirmities in the underlying civil
judgment precluded proof of the subsequent offense, but in which the violation at issue was not
analogous to the present case).

C. Use of Cavanaugh's Tribal Conviction

The ultimate question in the present case, however, is not whether a prior conviction involving a Scott
violation may be used to prove a 117 violation. It is whether an uncounseled conviction resulting in a
tribal incarceration that involved no actual constitutional violation 7 may be used later in federal court. In
this regard, we note that none of the previously discussed cases precluded the use of a prior conviction
for any purpose in the absence of an actual violation of the United States Constitution. 8 As per Nichols,
then, we believe it is necessary to accord substantial weight to the fact that Cavanaugh's prior convictions
involved no actual constitutional violation. Even assuming the cases discussed above collectively would
preclude use of a prior state or federal conviction in the present circumstances, we do not believe we are
free to preclude use of the prior conviction merely because it would have been invalid had it arisen from a
state or federal court.

Our approach is, admittedly, categorical in nature rather than firmly rooted in the reliability concerns
expressed in Gideon. Further, it fails to accord any special weight to the unique reason for why there was
no constitutional violation in Cavanaugh's prior proceedingsthe gap in the right to counsel caused by
incomplete extension of Sixth Amendment coverage to Indian tribes through the Indian Civil Rights Act.
Still, we believe the Court's emphasis in Nichols on the existence or absence of a prior constitutional
violation was clear, and, as we recognized in Charles, we believe the Court held the technical validity of a
conviction was a more important factor than the Gideon-type reliability concerns that always arise when
counsel is absent.

Also, although we do not believe Lewis or MendozaLopez directly control in the present context, we do
not read either case as precluding the use of Cavanaugh's prior convictions. To the extent the present
situation is akin to Lewis, in which the Court emphasized that the defendant could have moved to vacate
his convictions prior to committing the latter offense, we note that Cavanaugh does not allege he
attempted to vacate his prior convictions at any time prior to these proceedings. In fact, he does not even
allege he pursued an appeal, and he alleges neither that he was innocent of the tribal charges nor that
there were any other irregularities in the tribal proceedings. Further, to the extent Cavanaugh's case is
akin to MendozaLopez, where the court held a deprivation of appellate rights could preclude subsequent
use of a civil adjudication to establish guilt, Cavanaugh does not allege any irregularities related to a
deprivation of appellate rights, and, in any event, we do not view MendozaLopez as fully reconcilable
with Lewis.

Other courts have disagreed as to whether prior tribal court proceedings should be treated as involving
constitutional violations where a similar absence of counsel would have violated the Sixth Amendment
had it occurred in federal or state court. Compare State v. Spotted Eagle, 316 Mont. 370, 71 P.3d 1239,
124546 (Mont.2003) (refusing to treat a tribal proceeding as though it involved a Sixth Amendment
violation) with United States v. Ant, 882 F.2d 1389, 1394 (9th Cir.1989) (treating a tribal proceeding as
though it had involved a Sixth Amendment violation). In Ant, the Ninth Circuit held that it was
impermissible to use a prior, uncounseled, tribal-court guilty plea to prove the underlying facts for a
subsequent federal manslaughter charge. Ant, 882 F.2d at 1395. Ant differed from the present case in that
the federal proceedings in Ant arose out of the same alleged incident as the tribal proceedings at issue in
the case. Also, the government in Ant sought to use the guilty plea from tribal proceedings to prove, not
the fact of a prior conviction, but rather the truth of the matters asserted in the plea. The court in Ant
ultimately held it was necessary to suppress the guilty plea from tribal court because, although the guilty
plea was not obtained in violation of tribal law or the Indian Civil Rights Act, the tribal court guilty plea
was made under circumstances which would have violated the United States Constitution were it
applicable to tribal proceedings Id. at 1390. The court also noted that its holding would not unduly
prejudice the government because the government could still prove the facts by other means. Id.

In the Montana case, the state sought to use the fact of a prior tribal-court conviction to enhance a state
DUI charge to felony status. Spotted Eagle, 71 P.3d at 1241. The Montana Supreme Court expressed the
need to avoid interfering with the tribal courts and the respective tribe's sovereignty, stressed that the
tribal-court conviction was valid from its inception, and noted that, Nothing of record indicates that the
proceedings were fundamentally unfair or that Spotted Eagle was in fact innocent of the tribal charges.
Id. at 1245. The court refused to treat the tribal convictions as invalid merely because, had [they] been
obtained in a federal or state court, they would [have been] invalid at their inception pursuant to Scott. Id.
at 1243. This determination seemingly is consistent with our conclusion and Nichols.
In discussing interference with tribal sovereignty, however, the court in Spotted Eagle made two points,
only one of which we find convincing. The court noted that general principles of comity required the
Supreme Court of Montana to give full effect to the valid judgments of a foreign jurisdiction according to
that sovereign's laws, not the Sixth Amendment standard that applies to proceedings in Montana. Id. at
1245. The court, however, also discussed the risk of imposing inappropriately sweeping standards upon
diverse tribal governments, institutions, and cultures and imposing an insurmountable financial burden
on many tribal governments. Id. Regarding this latter statement, we see no such risk inherent in
Cavanaugh's position. Precluding the use of an uncounseled tribal conviction in federal court would in no
manner restrict a tribe's own use of that conviction; it would simply restrict a federal court's ability to
impose additional punishment at a later date in reliance on that earlier conviction.

In any event, the most we take from these two cases is that Supreme Court authority in this area is
unclear; reasonable decision-makers may differ in their conclusions as to whether the Sixth Amendment
precludes a federal court's subsequent use of convictions that are valid because and only because they
arose in a court where the Sixth Amendment did not apply. Accordingly, as a matter of first impression, we
hold that, in the absence of any other allegations of irregularities or claims of actual innocence
surrounding the prior convictions, we cannot preclude the use of such a conviction in the absence of an
actual constitutional violation.

D. Equal Protection

Cavanaugh also presents an equal protection argument that is not fully fleshed out in his brief. He argues
that, because the present issue may arise only in relation to prior offenses committed by Indians, 117 as
applied in this situation impermissibly singles out Indians because of their race and permits only Indians
to be convicted of 117 violations based upon prior, uncounseled convictions.

In United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977), the Court held that
federal criminal statutes did not violate the equal protection requirements implicit in the Due Process
Clause of the Fifth Amendment because distinctions based upon tribal affiliation were not invidious race-
based distinctions; they were distinctions based upon the quasi-sovereign status of [Indian tribes] under
federal law. Id. at 644, 646 (quoting Fisher v. District Court, 424 U.S. 382, 390, 96 S.Ct. 943, 47 L.Ed.2d
106 (1976)). As noted, Cavanaugh has not fully argued this issue, and as such, he has presented no
meaningful opportunity for us to address equal protection issues in this case. We note only that, when the
Supreme Court issues an opinion with reasoning that appears to undercut an earlier decision, lower
courts must continue to apply the earlier ruling in factual contexts analogous to the earlier case until such
time that the Supreme Court itself overturns the earlier case. See Agostini v. Felton, 521 U.S. 203, 237,
117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (We reaffirm that [i]f a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling
its own decisions. ) (quoting Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484, 109
S.Ct. 1917, 104 L.Ed.2d 526 (1989)). Here the rule of Antelope appears to be directly on point, and as
such it would seem that we must apply Antelope unless and until the Court decides that certain
distinctions related to Indians are race-based and merit greater scrutiny.

III. Conclusion

We reverse the judgment of the district court.

I agree with my panel colleagues' observation as to the Supreme Court's jurisprudence failing to provide
clear direction in determining whether the Sixth Amendment precludes a federal court from using an
uncounseled tribal court misdemeanor conviction to prove the elements of a subsequent federal offense.
The majority's opinion exhaustively covers the subject matter and aptly describes the tension in the
decisions which we must consider. I can also agree the lack of clarity means reasonable decision-makers
are likely to differ on the conclusions they reach with respect to allowing or prohibiting such use of an
uncounseled tribal court conviction. I disagree with the conclusion reached by the majority, however, and
therefore respectfully dissent.

The Sixth Amendment requires courts to furnish counsel for indigent criminal defendants whenever they
face the possibility of a deprivation of liberty; the failure to provide counsel in such situations violates the
Due Process Clause. See Gideon v. Wainwright, 372 U.S. 335, 33945, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963) (requiring counsel for indigent defendants facing felony charges); Argersinger v. Hamlin, 407 U.S.
25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (extending the rule in Gideon to any criminal charge which
actually leads to imprisonment for any period of time). In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19
L.Ed.2d 319 (1967), the Supreme Court said [t]o permit a conviction obtained in violation of Gideon v.
Wainwright to be used against a person either to support guilt or enhance punishment for another offense
is to erode the principle of that case. Id. at 115. After Burgett, the Supreme Court nonetheless eroded
Gideon by allowing uncounseled convictions to be used to enhance a sentence in a subsequent
conviction. See Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994)
( Reliance on such a conviction is also consistent with the traditional understanding of the sentencing
process, which we have often recognized as less exacting than the process of establishing guilt.).

I do not believe, however, the Supreme Court has eroded the other half of Gideon, that is, the prohibition
on using an uncounseled conviction to support guilt for another offense. In Lewis v. United States, 445
U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the Supreme Court held such a use was permissible only
because the uncounseled conviction was being used to support what the Court characterized as an
essentially civil disability, i.e., the prohibition on a felon's possession of a firearm. Id. at 67. The Court
justified the use of an uncounseled conviction to impose a criminal sanction to enforce a civil disability by
explaining Congress could rationally include uncounseled convicted felons among the class of persons
who should be disabled from dealing in or possessing firearms because of potential dangerousness. Id.

Section 117 of Title 18 cannot be characterized as merely imposing a civil disability on a certain class of
potentially dangerous personsthe statute is clearly aimed at recidivist criminal behavior where prior
offenses are necessary and integral elements of a subsequent federal offense. In such a situation, I
submit, the reliability of a prior conviction matters. See United States v. MendozaLopez, 481 U.S. 828,
833, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (prohibiting the use of an uncounseled deportation
proceeding to prove an element of the crime in a subsequent criminal prosecution).

There remains the problem that an uncounseled misdemeanor conviction obtained in tribal court does not
directly implicate the Sixth Amendment. I nonetheless believe such a conviction should be treated as
involving a constitutional violation where it is used to prove an element of an offense in a subsequent
federal court proceeding where the Sixth Amendment is implicated. As to such a proposition, I find
persuasive United States v. Ant, 882 F.2d 1389 (9th Cir.1989), where the Ninth Circuit prohibited the use
of an uncounseled tribal court guilty plea to prove the elements of a subsequent federal charge because
the tribal court guilty plea was made under circumstances which would have violated the United States
Constitution were it applicable to tribal proceedings. Id. at 1390. In this case, the district court correctly
observed, [t]he issue before the Court is not to question the validity of the tribal court proceedings or
question the tribal justice system, but instead to evaluate whether the convictions satisfy constitutional
requirements for use in a federal prosecution in federal court. United States v. Cavanaugh, 680
F.Supp.2d 1062, 1075 (D.N.D.2009). I am not convinced by the majority opinion's attempts to distinguish
Ant on the ground the federal prosecution for manslaughter involved therein arose out of the same
alleged incident involved in tribal court. In my view, the key in both cases involves the use of the prior
proceeding to prove an element of a subsequent federal offense. See Burgett, 389 U.S. at 115
(prohibiting the use of a conviction obtained in violation of Gideon v. Wainwright to be used against a
person to support guilt for another offense).

I respectfully dissent.

MELLOY, Circuit Judge.

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Riley vs California

Facts of the Case

David Leon Riley belonged to the Lincoln Park gang of San Diego, California. On August 2, 2009, he and
others opened fire on a rival gang member driving past them. The shooters then got into Rileys
Oldsmobile and drove away. On August 22, 2009, the police pulled Riley over driving a different car; he
was driving on expired license registration tags. Because Rileys drivers license was suspended, police
policy required that the car be impounded. Before a car is impounded, police are required to perform an
inventory search to confirm that the vehicle has all its components at the time of seizure, to protect
against liability claims in the future, and to discover hidden contraband. During the search, police located
two guns and subsequently arrested Riley for possession of the firearms. Riley had his cell phone in his
pocket when he was arrested, so a gang unit detective analyzed videos and photographs of Riley making
gang signs and other gang indicia that were stored on the phone to determine whether Riley was gang
affiliated. Riley was subsequently tied to the shooting on August 2 via ballistics tests, and separate
charges were brought to include shooting at an occupied vehicle, attempted murder, and assault with a
semi-automatic firearm.

Before trial, Riley moved to suppress the evidence regarding his gang affiliation that had been acquired
through his cell phone. His motion was denied. At trial, a gang expert testified to Rileys membership in
the Lincoln Park gang, the rivalry between the gangs involved, and why the shooting could have been
gang-related. The jury convicted Riley on all three counts and sentenced to fifteen years to life in prison.
The California Court of Appeal, Fourth District, Division 1, affirmed.

Question

Was the evidence admitted at trial from Rileys cell phone discovered through a search that violated his
Fourth Amendment right to be free from unreasonable searches?

Argument
Riley v. California - Oral ArgumentUnited States v. Wurie - Oral ArgumentRiley v. California -
Opinion Announcement
Conclusion
Decision: 9 votes for Riley, 0 vote(s) against
Legal provision: Fourth Amendment

Yes. Chief Justice John G. Roberts, Jr. wrote the opinion for the unanimous Court. The Court held that the
warrantless search exception following an arrest exists for the purposes of protecting officer safety and
preserving evidence, neither of which is at issue in the search of digital data. The digital data cannot be
used as a weapon to harm an arresting officer, and police officers have the ability to preserve evidence
while awaiting a warrant by disconnecting the phone from the network and placing the phone in a
Faraday bag. The Court characterized cell phones as minicomputers filled with massive amounts of
private information, which distinguished them from the traditional items that can be seized from an
arrestees person, such as a wallet. The Court also held that information accessible via the phone but
stored using cloud computing is not even on the arrestees person. Nonetheless, the Court held that
some warrantless searches of cell phones might be permitted in an emergency: when the governments
interests are so compelling that a search would be reasonable.

Justice Samuel A. Alito, Jr. wrote an opinion concurring in part and concurring in the judgment in which he
expressed doubt that the warrantless search exception following an arrest exists for the sole or primary
purposes of protecting officer safety and preserving evidence. In light of the privacy interests at stake,
however, he agreed that the majoritys conclusion was the best solution. Justice Alito also suggested that
the legislature enact laws that draw reasonable distinctions regarding when and what information within a
phone can be reasonably searched following an arrest.

Bennis v. Michigan

Citation. 516 U.S. 442,116 S. Ct. 994, 134 L. Ed. 2d 68,1996 U.S.

Brief Fact Summary. A husband used a car he jointly owned with his wife to have sex with a
prostitute. The government seeks forfeiture of the car.

Synopsis of Rule of Law. An owners interest in property may be forfeited by reason of the use to
which to property is put even though the owner did not know how her property was being used.
Facts. Tina Bennis (Petitioner) jointly owned a car with her husband. The police arrested him after
observing him having sex with a prostitute in their car. An indecency law states that the government
can seek forfeiture of property that is a public nuisance. The government sought to declare the car a
public nuisance.

Issue. If an owner of property does not know how her property is being used by another, can the
owners interest still be forfeited?

Bennis

Facts of the Case

Bennis's husband was convicted of gross indecency following his sexual activity with a prostitute in the
couple's jointly-owned car. The local county prosecutor filed a complaint alleging the car was a public
nuisance subject to abatement (i.e., to eliminate or confiscate the car). The Circuit Court entered the
abatement order, but the Appeals Court reversed. After granting leave to appeal, the Supreme Court of
Michigan reversed the appellate court's decision and re-entered the abatement order. Bennis appealed to
the Supreme Court.

Question

Does the abatement order entered against Bennis's car constitute a taking of private property for public
use in violation of the property clauses of the Fifth and Fourteenth Amendments?

Argument
Bennis v. Michigan - Oral ArgumentBennis v. Michigan - Opinion Announcement
Conclusion
Decision: 5 votes for Michigan, 4 vote(s) against
Legal provision: Due Process

Writing for a 5-to-4 majority, Chief Justice William H. Rehnquist held that the abatement order against
Bennis's car did not violate the takings clause. Her innocence and lack of knowledge concerning her
husband's illegal and indecent activity, in the couple's jointly owned car, could not serve as a defense
against her vehicle's forfeiture. Furthermore, under the present circumstances, the vehicle's forfeiture did
not violate Bennis's property rights without due process. Michigan's abatement policy, aimed at deterring
criminal uses of property, lawfully transferred her's vehicle to the state. As such, Michigan is not required
to compensate Bennis for the vehicle's forfeiture.

Clar