Opinion
Case No. 96-12891-SSM
September 17, 1996
MEMORANDUM OPINION AND ORDER
This matter is before the court on a motion filed by the debtor in open court on September 10, 1996, for removal of the standing chapter 13 trustee and an award of sanctions.
The factual circumstances giving rise to the present motion are set forth in a separate memorandum opinion denying confirmation of the debtor's plan but will be briefly repeated. The debtor filed a voluntary chapter 13 petition — his fourth in a period of two and a half years — in this court on May 30, 1996. The meeting of creditors required by § 341 Bankruptcy Code, 11 U.S.C. § 341, was scheduled for July 15, 1996. Although the court has not been furnished with a transcript of the meeting, the debtor alleges that when he told the chapter 13 trustee, who was presiding at the meeting, "I am a Muslim and I refuse to raise my hand and swear," the trustee responded, "Then I won't take your testimony," and concluded the meeting. Based on this exchange, the debtor asserts that the trustee is biased against him because of his religion.
The debtor attached as an exhibit to his motion a transcript of the 341 meeting held on November 20, 1995 in his third chapter 13 case. It reflects the following exchange:
MR O'DONNELL: Would you raise your right hand, please?
MR. SHABAZZ: I am a Muslim, and I don't swear.
MR. O'DONNELL: Then I won't take your testimony, sir.
MR. SHABAZZ: What does that mean?
MR. O'DONNELL: Well, that means that, at this point in time, I am going to let the Internal Revenue service worry about you.
MR. SHABAZZ: Because I won't swear?
MR. O'DONNELL: I am just going to let them worry about you. I am not going to be concerned about it. Its your problem with them; it's not my problem.
MR. SHABAZZ: You are dismissing this case; correct?
MR. O'DONNELL: I am letting the Internal Revenue Service worry about it.
The primary purpose of the meeting of creditors is to permit the trustee and creditors to examine the debtor "under oath." F.R.Bankr.P. 2003(b)(1). Nevertheless, consistent with F.R.Bankr.P. 9012(b) and Fed.R.Evid. 603, a debtor who, either by reason of lack of belief in a divine being, or religious scruples against invoking the name of the deity, may, in lieu of taking an oath, "declare that [he or she] will testify truthfully, by . . . affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so." A debtor who does so has fully complied with his or her obligation under § 341, Bankruptcy Code, and the resulting testimony is not made less probative simply because the witness declined to swear by the name of God. See, Fed.R.Evid. 610 ("Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced").
"When in a case under the Code an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof."
A number of Christian denominations, such as the Mennonites, interpret the reported words of Jesus in Matthew 5:33-37 and the admonition in James 5:12 as a prohibition against the taking of judicial oaths:
[I]t hath been said by them of old time, Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths: But I say unto you, Swear not at all; neither by heaven; for it is God's throne: Nor by the earth; for it is his footstool: . . . But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil.
* * *
But above all things, my brethren, swear not, neither by heaven, neither by the earth, neither by any other oath: but let your yea be yea; and your nay, nay; lest ye fall into condemnation.
A brief and fascinating history of the controversy among Christians over the taking of oaths is set forth at 19 Encyclopaedia Britannica, "Oaths", 940 (11th ed. 1911). With respect to Muslims, the court was unaware of any general prohibition on the taking of a judicial oath, and apparently Muslims in England have historically taken an adapted form of oath in judicial proceedings: "A Mahommedin is sworn upon the Koran. He places his right hand flat upon the book and puts the other hand upon his forehead, bringing his head down to the book and in contact with it. He then looks at the book for some moments." Id. at 943. In any event, it is not the business of civil courts to inquire into the merits or minutiae of a witness's theological beliefs: if the witness states that he or she has religious objections to swearing and asks instead to affirm, that is the end of the inquiry, and the witness's affirmation should be taken without further ado.
No particular form of affirmation is prescribed by the Federal Rules. The form of affirmation used in the English courts is as follows: "I, A. B., do sincerely, solemnly, and truly declare and affirm that the evidence I give shall be the truth, the whole truth, and nothing but the truth." 19 Encyclopaedia Britannica, "Oaths", 942-943 (11th ed. 1911). In the United States armed forces, the suggested form of affirmation administered to witnesses in courts-martial is as follows: "Do you affirm that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth?" Manual for Courts-Martial, United States, 1984, Part II, Rules for Courts-Martial 807(b)(2), Discussion. The Benchbook for United States District Judges, § 4.01 (Fed.Jud.Ctr., 3rd. ed., 1986) suggests the following form:
You do solemnly affirm that all the testimony you are about to give in the case now before the court will be the truth, the whole truth, and nothing but the truth; under the penalties of perjury.
Any suggestion of religious bias against a debtor, creditor, or other party in interest on the part of those who administer the bankruptcy system would be a matter of grave concern to this court. But the court is satisfied that no such conduct occurred here. The standing chapter 13 trustee, who presided at the meeting of creditors held in this case on July 15, 1996, advised the court that there were no creditors present. The debtor objected to the taking of an oath, and the trustee did not examine the debtor. The trustee explained that he did not do so because he was familiar with the debtor as a result of the prior filings and there was no need for an examination, since at bottom the chapter 13 case was a dispute between the debtor and the IRS. He also assured the court that he has, in presiding over meetings of creditors, permitted debtors religiously opposed to the taking of an oath to affirm rather than swear.
The court credits the trustee's explanation and does not find that the trustee's actions evidence any religious bias against the debtor. Additionally, it is clear that the debtor has not been deprived of any procedural or substantial rights. As noted above, the primary purpose of a meeting of creditors is to give the trustee and creditors an opportunity to examine the debtor. The meeting of creditors is not in any sense an adjudicative hearing. No rulings or decisions are made at the meeting that affect the debtor's substantive rights. It is simply a vehicle by which, among other things, creditors can determine whether to object to confirmation of the debtor's proposed plan. If a creditor does object, as here, the matter is heard and determined by the court after notice to the debtor. At the hearing on the objection, the debtor is free to offer any relevant testimony and documentary evidence. The fact that the trustee chooses not to examine the debtor at the meeting of creditors does not create any presumption against confirmation or affect any burdens of proof with respect to confirmation. In short, the debtor was not deprived of any rights conferred by the Bankruptcy Code or the Federal Rules of Bankruptcy Procedure simply because his testimony was not taken at the meeting of creditors.
ORDER
For the foregoing reasons, the court does not find that a basis exists for the relief requested by the debtor. It is, accordingly,
ORDERED:
1. The Motion For Removal And Reprimand Of Trustee is DENIED.
2. The clerk will mail a copy of this memorandum opinion and order to the debtor, the standing chapter 13 trustee, and the United States Trustee.