Petition for Writ of Certiorari — Hale v. Committee on Character & Fitness of the Illinois Bar

WY FILED

991349 FEB 1 0 2000

No. 99-

O° i: OF Te CLERK

IN THE

Supreme Court of the United States

MATTHEW F. HALE,

Petitioner,

V.

THE COMMITTEE ON CHARACTER AND FITNESS OF THE

ILLINOIS BAR, and THE ILLINOIS BAR,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

ROBERT HERMAN ANITA RIVKIN-CAROTHERS

Counsel of Record 33 North LaSalle

SCHWARTZ, HERMAN & DAVIDSON Suite 3300

University Club Tower Chicago, IL 60602

1034 South Brentwood Blvd. (312) 641-2901

Suite 1800

St. Louis, MO 63117

(314) 862-0200

Attorneys for Petitioner

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157665 @J Counsel Press LLC

(800) 274-3321 +» (800) 359-6859

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QUESTIONS PRESENTED

Whether the Illinois Bar Committee on Character

and Fitness violates the First and Fourteenth

Amendments to the United States Constitution by

establishing orthodox religious and political beliefs

to which a Bar applicant must subscribe as a

condition of admission and by refusing admission

to Petitioner because his beliefs are contrary to the

letter and spirit of the Illinois Bar Rules of

Professional Conduct and Petitioner engaged in

offensive speech outside the scope of a legal

professional relationship.

Whether the Illinois Bar Committee on Character

and Fitness violates the First Amendment and the

Equal Protection and Due Process clauses of the

Fourteenth Amendment by broadly defining the bar

admission criteria of good moral character to include

an examination of Petitioner’s religious and political

beliefs and advocacy.

i

TABLE OF CONTENTS

Questions Presented ...............00::; Soe goes

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Fable of AQpemGiete .....c.54.c00< kee

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Statement of Jurisdiction .....................

Statement of the Case ....°....ccccccccvccecses

A.

Hale met his burden to establish his good

mores CRMIOUEN.. ..50as oa ke

The Committee’s rejection of Hale turned on

his religious and political beliefs. ........

Reasons for Granting the Wee

The Decision Of The Illinois Committee On

Character And Fitness Conflicts With

Relevant Decisions Of This Court ........

A. The Bar may not exclude Petitioner from

the practice of law on the basis of his

OOO... ... «ss cin dee ae eer ees

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6

Contents

B. The Bar cannot exclude Petitioner on the

basis of his political and religious

er ooo 5 eck ed wae x eee e s

C. The Committee’s definition of good

moral character to include Petitioner’s

beliefs and advocacy is overbroad,

intrudes into First Amendment protected

areas, and violates the equal protection

and due process clauses of the

Fourteenth Amendment. ............

This Issue Is Important Because The Attempt

To Enforce Political Orthodoxy Presents A

Danger To The Vitality And Independence

Of The Bar.

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Conclusion

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9

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Baird vy. State Bar of Arizona, 401 U.S. 1,91 S. Ct.

FT hs PU EED Ss ches Sh bas cae 7

Bond v. Floyd, 385 U.S. 116, 87 S. Ct. 339, 17

ae Fe i | ee ed ere rman ae 7

Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900,

ee er eiare ey os ae 6

Gentile v. State Bar of Neveda, 501 U.S. 1030, 111

a 42, Zee, 619 L, BG. SE Cee Ciel) ees eas 8

In Re Primus, 436 U.S. 412, 98 S. Ct. 1893, 56

eS ei. sere ere ere err ere 8

In re Summers, 325 U.S. 561, 65 S. Ct. 1307, 89

ht PORE OEE che dd ca cekw heekbiakenees 2

Konigsherg v. State Bar of California, 353 U.S. 252,

Ti & GA. Cady Ee. BE BO SIC FEED oc iciees 8

Law Students Civil Rights Council, Inc. v. Wadmond,

401 U.S. 154, 915. Ct. 720 (1971) ........... 9

Schware v. Board of Bar Examiners, 353 U.S. 232,

Fd a GA, Toes bb BR, FIO AAISE once er ee es. 9

West Virginia State Board of Education v. Barnette,

314 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628

A ares Nese Versa rere aners 7,8

Len 2 ee te

Cited Authorities

Page

Statute:

ae aS Le | ene waar nee Te a.

United States Constitution:

Pie PONE 555s ie ee eee 7, 8,9

Fourteenth Amendment....................... 3,8

Rule:

Illinois Bar Rule 8.4(a)5 ...................... 4

vi

TABLE OF APPENDICES

Appendix A — Letter Order Of The Supreme Court

Of Illinois Dated November 12, 1999 .........

Appendix B — Justice Heiple Dissent From Supreme

RE SOD 5.5 xj 83S s ee ees

Appendix C — Findings And Conclusions Of The

Committee On Character And Fitness Of The

Supreme Court Of Illinois For The Third Judicial

District Dated April 10, 1999 ................

Appendix D — Decision Of Inquiry Panel Of The

Committee On Character And Fitness Of The

Supreme Court Of Illinois For The Third

Appellate District Dated December 16, 1998 ...

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OPINIONS BELOW

The order of the Illinois Supreme Court is reported at

Ill. M.R. 16075 (App., infra). The opinion of Justice Heiple,

dissenting from the order, is reported at M.R. 16075 (App.,

infra). The findings and conclusions of the Committee on

Character and Fitness are unreported. (App., infra). The

decision of the Inquiry Panel is unreported (App., infra).

STATEMENT OF JURISDICTION

The Illinois Supreme Court entered its order on

November 12, 1999. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(a).

STATEMENT OF THE CASE

Matthew Hale graduated from the School of Law,

Southern Illinois University at Carbondale in 1998. Mr. Hale

passed the Illinois Bar examination and applied for admission

to the Illinois Bar. The Illinois Bar Inquiry Panel refused to

certify Mr. Hale for admission to the Illinois Bar, because

“[t]he Bar of Illinois cannot certify someone as having good

moral character and general fitness to practice law who has

dedicated his life to inciting racial hatred for the purpose of

implementing those views.” (App., infra). The Inquiry Panel

held that Hale is

free, as the First Amendment allows, to incite as

much racial hatred as he desires and attempt to

Carry out his life’s mission of depriving those he

dislikes of their legal rights. But in our view he

cannot do this as an officer of the court.

2

(App., infra). Following appeal and hearing, the Committee

on Character and Fitness affirmed Hale’s exclusion from the

bar, holding that [t]he question before this panel is whether

Mr. Hale can put aside his beliefs and comply with the rules

of Professional Conduct.” Committee decision p. 4.

(App., infra). The Illinois Supreme Court denied review,

(App., infra) which had the effect of making the Committee’s

decision final. Jn re Summers, 325 U.S. 561, 65 S. Ct. 1307,

89 L. Ed. 1795 (1945). Illinois Supreme Court Justice Heiple,

dissenting from denial of review, opined that review should

have been granted on the grounds that the Committee rejected

Hale for his “open, advocacy of racially obnoxious beliefs.”

Opinion of Illinois Supreme Court (Justice Heiple

dissenting). (App., infra).

A. Hale met his burden to establish his good moral

character.

Hale presented affidavits attached to his bar application

attesting to his good moral character. During the Committee

hearing, Hale presented the testimony of attorney Brian

McPheters, who had employed Hale as a law clerk.

McPheters vouched for Hale’s honesty, integrity, candor,

industriousness, conscientiousness towards his work,

professional responsibility, and trustworthiness. Mr. Hale

also presented testimony from his father, several

acquaintances within his religious/political movement, and

members of his church who testified that Mr. Hale is a man

of principled conviction, a man of honesty and integrity, is

loyal to his country and committed to the principles of the

United States Constitution, the Illinois Constitution and

Illinois law. The Committee did not challenge the credibility

of Hale’s character witnesses.

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Mr. Hale testified that he is now and always has been

willing to swear to protect and defend both the United States

Constitution and the Constitution of the State of Illinois and

to protect, defend, and comply with the laws of the State of

Illinois and professional rules of the Illinois Bar. Mr. Hale

testified that he would abide by all laws and regulations

respecting all rights of minorities. Mr. Hale testified that he

would work within the system to change the laws with which

he personally disagrees, but rejects unlawful and violent

action as a means of social change.

The Committee called no witnesses.

B. The Committee’s rejection of Hale turned on his

religious and political beliefs.

The Committee extensively cross-examined Hale about

his beliefs.' The Committee repeatedly challenged Hale

whether his beliefs were consistent with the duties and

responsibilities of lawyers. Hale candidly admitted his

rejection of racial equality, that he is publicly opposed to

the current judicial interpretation of the Equal Protection

Clause of the Fourteenth Amendment, and that he would

work peaceably and within the system to change the laws to

conform to his own view of racial politics. The Committee

reminded Hale that his beliefs were controversial and asked

for assurance that Hale could comply with his professional

responsibilities, given his beliefs. In his closing argument,

l. See, e.g., Question of Member Perrington: “I’m still not clear

on what you say you believe in and what yqu do and let me ask you

a couple of questions to see if I can help clarify that.” Transcript,

p. 233. Statement of Chairman Lustfeld: “This is really not about

your beliefs except as they might be indicative of your character

and fitness to be a member of the Bar.” Transcript, p. 239.

4

the Committee’s counsel urged the Committee to exclude

Hale from the bar because of his failure to understand that

all men are created equal.

The Committee’s written opinion turned upon its

conclusion that “Mr. Hale’s long standing and strongly held

beliefs are diametrically opposed to the letter and spirit of

[Illinois Bar] Rule 8.4(a)5.” The Committee limited its

discussion of Mr. Hale’s history to three prior acts of

advocacy, specifically relying upon: the Roberson letter; the

order of protection entered against Hale for offensive speech;

and Hale’s academic probation for distributing racist flyers.

The Roberson letter was written by Hale in response to

a newspaper editorial regarding affirmative action. The letter

concluded:

When the Hell are people of your ilk going

to face the fact that the nigger race is inferior in

intellectual capacity? You have examples all

around you and yet you continue to cling to the

misbegotten equality myth, which is not only

destroying our universities but also our whole

country. Is it going to take your rape at the hands

of a nigger beast or your murder before you

become aware of the problem?

The letter addressed Hale’s vehement objection to race-

mixing: the core concern of his political and religious

movement. Hale testified that the letter was written in a

personal and private capacity. In response to the Committee’s

question as to whether he would write such a letter as a

lawyer, Hale replied that “(t]here’s a difference between a

lawyer or party and a personal letter to someone else... .

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The rules of professional responsibility, 1 don’t think, apply

to a fellow in his own house writing his own letter to

somebody, to something completely unrelated to law.”

The order of protection was entered ex parte against Hale

and rested solely on the allegation that Hale had, ina strictly

private context and on a single instance, called the

complainant a “mongrel” and a “bitch.” There is no allegation

that this incident represents a pattern of behavior. Further,

there is no allegation: of physical violence or threatening

conduct. The Committee did not indicate that this trivial and

isolated incident would serve as grounds for exclusion apart

from the inflammatory racial rhetoric.

The Committee also cites an academic probation

imposed because Hale distributed racist flyers without prior

approval of the school administration. There is no allegation

that this incident, divorced from the content of Hale’s speech,

would serve as independent grounds for exclusion from the

bar.’

The Committee does not claim that any of these incidents

constitute fighting words, a sanctionable threat of violence,

or, in the applicable context, a violation of any law or

professional rule. The Committee’s objection is to the

offensiveness of the speech content.

2. Hale was examined regarding his appearance at a prayer

breakfast, where he was alleged to have given a Nazi-like salute.

Hale was also examined regarding an obstruction of justice charge

of which he was ultimately exonerated. The Committee did not cite

cither incident in its opinion as a basis for Hale’s exclusion.

6

REASONS FOR GRANTING THE WRIT

The Illinois Bar Committee on Character and Fitness

holds that the content of Hale’s political and religious speech

and beliefs may be used as a basis for excluding him from

the practice of law. In a time when political correctness runs

rampant through our government and academia, and political,

social and religious litmus tests are becoming the norm for

appointment to the Bench, the need for guidance from this

Court is acute. The issues raised herein rest squarely on

Federal Constitutional issues and cannot be resolved on

independent state grounds. This case is a timely and rare

opportunity to provide that guidance, since the opinion of

the Committee, adopted by the Illinois Supreme Court, rests

on Petitioner’s advocacy of politically unpopular beliefs and

speech, conducted entirely outside the scope of any

professional legal relationship. Moreover, the decision below

is an important federal question decided in a way that

conflicts with relevant decisions of this Court.

THE DECISION OF THE ILLINOIS COMMITTEE ON

CHARACTER AND FITNESS CONFLICTS WITH

RELEVANT DECISIONS OF THIS COURT

A. The Bar may not exclude Petitioner from the practice

of law on the basis of his beliefs.

Freedom to believe what one will “is absolute.” Cantwell

v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84

L. Ed. 123 (1940). The state may not constitutionally

condition admission to the Bar upon the applicant swearing

allegiance to social and political principles and professing

them as his own. “If there is any fixed star in our

constitutional constellation, it is that no official high or petty,

Se Se Le Ne

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can prescribe what shall be orthodox in politics, nationalism,

religion or other matters of opinion or force citizens to

confess by word or act their faith therein.” West Virginia

State Board of Education vy. Barnette, 314 U.S. 624, 642. 63

S. Ct. 1178, 1187, 87 L. Ed. 1628 (1943). Since Bar

admission committees are prohibited from inquiring “about

a man’s views and associations solely for the purpose of

withholding a right or benefit because of what he believes,”

Baird v. State Bar of Arizona, 401 U.S. 1,7, 91 S. Ct. 702,

706, 27 L. Ed. 2d 639 (1971), they should equally be

prohibited from barring an applicant on the basis of his

known beliefs.

The Committee cannot evade the constitutional

proscription against punishing beliefs by claiming Mr. Hale’s

beliefs will likely lead him into conduct violative of the

professional rules, see Bond v. Floyd, 385 U.S. 116, 87

S. Ct. 339, 17 L. Ed. 2d 235 (1966), in which this Court

rejected as unconstitutional the Georgia House of

Representatives’ exclusion of Julian Bond on the supposition

that Mr. Bond’s prior speech demonstrated that he would be

unable to uphold the oath of office.

As in Bond, the speech punished herein is at the core of

the protection afforded by the First Amendment. The

Committee has made it clear in its opinion that Hale is being

excluded expressly because the political, social and religious

convictions he expresses offend the Committee’s notions of

fairness and justice. The Inquiry Panel enumerated

“Fundamental Truths” to which the Bar was committed: those

at odds with those fundamental truths cannot be admitted as

an officer of the court. If the Bar is allowed to establish such

orthodoxy of belief in this case, what will prevent the bar

from establishing orthodox views on other social and

8

constitutional issues such as abortion or state/s rights? “The

very purpose of the Bill of Rights was to withdraw certain

subjects from the vicissitudes of political controversy, to

place them beyond the reach of majorities and officials and

to establish them as legal principles to be applied by the

courts.” Barnette, id. 319 U.S. at 638, 63 S. Ct. at 1185.

B. The Bar cannot exclude Petitioner on the basis of his

political and religious speech.

Lawyers do not relinquish their constitutional rights as

a condition of practicing law. /n Re Primus, 436 U.S. 412,

98 S. Ct. 1893, 56 L. Ed. 2d 417 (1978). The Illinois Bar

does not, and cannot, assert a compelling governmental

interest unrelated to the suppression of expression to sanction

the exercise of First Amendment activities wholly unrelated

to the practice of law. Gentile v. State Bar of Neveda, 501

U.S. 1030, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991). The

assertion that the Rules of Professional Conduct constrain a

lawyer’s beliefs and speech in every aspect of his life is

astonishingly overbroad and cannot survive strict scrutiny.

C. The Committee’s definition of good moral character

to include Petitioner’s beliefs and advocacy is

overbroad, intrudes into First Amendment protected

areas, and violates the equal protection and due

process clauses of the Fourteenth Amendment.

The term “good moral character” is “[s]uch a vague

qualification, which is easily adapted to fit personal use and

predilections, [it] can be a dangerous instrument for arbitrary

and discriminatory denial of the right to practice law.”

Konigsberg v. State Bar of California, 353 U.S. 252, 262-3,

77S. Ct. 722, 728, 1 L. Ed. 2d 810 (1957). The Committee’s

Biba Phares Re LT SRD ease eee

9

attempt to define beliefs and advocacy as the basis of good

moral character was rejected in Schware vy. Board of Bar

Examiners, 353 U.S. 232,778. Ct. 752, 1 L. Ed. 796 (1957).

“Mere unorthodoxy in the field of political and social ideas

does not as a matter of fair and logical inference, negate

good moral character.” /d. at 353 US. 232, 244, 77S. Ct.

752, 759 (internal brackets and quotations removed).

THIS ISSUE IS IMPORTANT BECAUSE THE

ATTEMPT TO ENFORCE POLITICAL ORTHODOXY

PRESENTS A DANGER TO THE VITALITY AND

INDEPENDENCE OF THE BAR.

The imposition of politically acceptable beliefs and

advocacy as a precondition to Bar membership directly

undermines the core protection of beliefs and advocacy

afforded by the First Amendment. Justice Black’s admonition

in Wadmond is not stripped of its wisdom merely because it

appears in a dissent: “To force the Bar to become a group of

thoroughly orthodox, time-serving, government-fearing

individuals is to humiliate and degrade it.” Law Students

Civil Rights Council, Inc. y. Wadmond, 401 U.S. 154, 181.

91S. Ct. 720, 735 (1971) (Black, dissenting).

10

CONCLUSION

For these compelling reasons of constitutional

importance, the Court should grant this Writ of Certiorari.

Respectfully submitted,

ROBERT HERMAN ANITA RIVKIN-CAROTHERS

Counsel of Record. 33 North LaSalle

SCHWARTZ, HERMAN & Davipson Suite 3300

University Club Tower Chicago, IL 60602

1034 South Brentwood Blvd. (312) 641-2901

Suite 1800

St. Louis, MO 63117

(314) 862-0200

Attorneys for Petitioner

APPENDIX

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APPENDIX A— LETTER ORDER OF THE SUPREME

COURT OF ILLINOIS DATED NOVEMBER 12, 1999

SUPREME COURT OF ILLINOIS

SUPREME COURT BUILDING

SPRINGFIELD 62701

* * *

November 12, 1999

Mr. Robert Herman

Schwartz, Herman and Davidson

1034 South Brentwood Boulevard

Suite 1800

St. Louis, MO 63117

TODAY THE FOLLOWING ORDERS WERE ENTERED:

M.R.16075 - In re: Matthew F-. Hale, petitioner.

Petition by Matthew F. Hale. pursuant to.

Supreme Court Rule 708(d), requesting a full

review by the Illinois Supreme Court of the

findings and conclusions of the Character and

Fitness Committee dated June 30, 1999, and

a request for oral argument. Motion denied.

Order entered by the Court.

Motion by petitioner for leave to file reply to

Character and Fitness Committee’s response.

Motion denied.

Order entered by the Court.

2a

Appendix A

MISCELLANEOUS RECORD

M.R.16075

In re: Matthew F. Hale, petitioner.

Petition by Matthew F. Hale, pursuant to

Supreme Court Rule 708(d), requesting a full

review by the Illinois Supreme Court of the

findings and conclusions of the Character and

Fitness Committee dated June 30, 1999, and

a request for oral argument. Motion denied.

Order entered by the Court.

Motion by Committee on Character and

Fitness for leave to supplement the record

instanter with a proffer and argument

concerning events occurring after the Hearing

Panel’s decision. Motion denied.

Order entered by the Court.

Motion by Illinois State Bar Association

(ISBA) for leave to participate as amicus

curiae and to file instanter brief amicus curiae

in support of the Illinois Supreme Court’s

Committee on Character and Fitness. Motion

denied.

Order entered by the Court.

Motion by petitioner for leave to file reply to

Character and Fitness Committee’s response.

Motion denied.

Order entered by the Court.

— Pee

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APPENDIX B — JUSTICE HEIPLE DISSENT

FROM SUPREME COURT ORDER

M.R. 16075

In re MATTHEW EF. HALE, Petitioner.

JUSTICE HEIPLE, dissenting:

Petitioner Matthew F. Hale applied for admission to

practice law in Illinois. The Committee on Character and

Fitness concluded that his application should be denied.

Petitioner now asks this court to review the Committee’s

decision. Thus, the question before the court at this juncture

is not whether petitioner should be licensed to practice law.

The question, rather, is whether the Supreme Court should

consider his appeal. Because the petition raises questions of

constitutional significance that should be resolved openly

by this court, | dissent from the majority's refusal to hear

this case.

The crux of the Committee’s decision to deny

petitioner's application to practice law is petitioner's open

advocacy of racially obnoxious beliefs. The Hearing Panel

found that petitioner's “publicly displayed views are

diametrically opposed to the letter and spirit” of the Rules

of Professional Conduct. The Inquiry Panel found that, in

regulating the conduct of attorneys, certain “fundamental

truths” of equality and nondiscrimination “must be preferred

Over the values found in the First Amendment.” Petitioner

contends that the Committee’s use of his expressed views to

justify the denial of his admission to the bar violates his

constitutional rights to free speech. That constitutional

question deserves explicit, reasoned resolution by this court.

4a

Appendix B

Instead, the court silently accepts the conclusion of the

Committee, which asserted that “[t]his case is not about Mr.

Hale's First Amendment rights.” To the contrary, this case

clearly impacts both the first amendment to the federal

Constitution and article I, section 4, of the Illinois

Constitution.

In addition, the Committee’s ruling on petitioner’s

application presents a second important issue which this court

should address. The Committee seems to hold that it may

deny petitioner's application for admission to the bar without

finding that petitioner has engaged in any specific conduct

that would have violated a disciplinary rule if petitioner were

already a lawyer. The Committee merely speculates that

petitioner is “on a collision course with the Rules of

Professional Conduct” and that, if admitted, he will in the

future “find himself before the Attorney Registration and

Disciplinary Commission.” I believe this court should

address whether it 1s appropriate for the Committee to base

its assessment of an applicant’s character and fitness on

speculative predictions of future actionable misconduct.

The question also arises: If all of petitioner’s statements

identified by the Committee had been made after obtaining

a license to practice law, would he then be subject to

disbarment? That is to say, is there one standard for

admission to practice and a different standard for continuing

to practice? And, if the standard is the same, can already-

licensed lawyers be disbarred for obnoxious speech?

The Illinois Supreme Court is the licensing authority for

all Illinois lawyers. Its rules cover all aspects of admission

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Appendix B

to the bar and professional conduct thereafter. It has the

power to license, regulate, and to disbar. The issues presented

by Mr. Hale’s petition are of such significant constitutional

magnitude that they deserve a judicial review and

determination by this court.

For the reasons given, | respectfully dissent from the

denial of the petition for review.

6a

APPENDIX C — FINDINGS AND CONCLUSIONS OF

THE COMMITTEE ON CHARACTER AND FITNESS

OF THE SUPREME COURT OF ILLINOIS FOR THE

THIRD JUDICIAL DISTRICT DATED APRIL 10, 1999

BEFORE THE COMMITTEE ON

CHARACTER AND FITNESS

SUPREME COURT OF ILLINOIS

THIRD JUDICIAL DISTRICT

In Re: Application of Matthew F. Hale

Commissioners present: Gordon L. Lustfeldt

Thomas Dunn

Clark Erickson

Charles Marshall

L. Lee Perrington

Hearing date: April 10, 1999

Counsel for Applicant: Robert Herman

Counsel adverse to

Applicant: George Murtaugh

Decision: Not recommended for certification

Vote: 5 no; 0 yes

FINDINGS AND CONCLUSIONS

A hearing was held April 10, 1999 at the Will County

Courthouse. All the above listed persons were present,

pursuant to prior notice. The hearing was open to the public,

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7a

Appendix C

at the applicant’s request. Due to the illness of Committee

member Louis Bertani, L. Lee Perrington, a member of the

Second District Character and Fitness Committee, was

substituted, without objection.

The commissioners (hereinafter referred to as the panel),

heard the evidence and arguments of counsel. At the

conclusion of the April 10 hearing, counsel for the applicant

requested an opportunity to file briefs, which was allowed

without objection. The panel has considered the briefs

submitted by both sides. The panel also granted the motion

of the American Civil Liberties Union of Illinois to file an

amicus curiae brief, and has considered same.

Because counsel were allowed a total of 20 days after

the hearing to submit briefs, there was no way the panel could

vote within 21 days of the hearing. Therefore, after allowing

the filing of briefs, the panel decided to defer their vote for

an additional 21 days, pursuant to Rule 5.3(e) of the Rules

of Procedure for Character and Fitness Committees. This

was known by the parties at the conclusion of the April 10

hearing. The members of the panel later conferred within

the period set by the Rules, and voted prior to the end of the

extended voting period.

This case is not about Mr. Hale’s First Amendment

rights. He is certainly entitled to his own beliefs, and the

free expression thereof. The issue here is whether Mr. Hale

possesses the requisite character and fitness for admission

to the practice of law. The applicant has the burden of proving

by clear and convincing evidence that he has the requisite

Sa

Appendix C

_character and fitness to be admitted to the practice of law.

(Rule 4.1, Rules of Procedure; /n Re Loss 119 Ill. 2d 186

(1987)).

. Having considered all the evidence, and having observed

the witness® testimony, including that of the applicant, it 1s

the unanimous decision of this panel that the applicant has

not met his burden of proof, and that he should not be

recommended tor certification. While relying on the entire

record in support of its decision, the panel specifically notes

the tollowing:

|. The applicant expressed no difficulty in taking the

necessary oath to become an attorney. However, a

Willingness to take the oath does not end our inquiry.

Attorneys are also required to comply with the Illinois Rules

of Professional Conduct (Article VIII, Supreme Court Rules).

It is axiomatic that an applicant who will not or cannot abide

by the Rules of Professional Conduct, should not be admitted

to the bar. Such a person will quickly run afoul of these rules,

often leaving a victim in his wake. Having considered the

evidence, and having observed Mr. Hale's testimony, the

panel tinds that he has failed to show that he will abide by

the Rules of Professional Conduct.

In the first instance, Mr. Hale has an incorrect view as

to the application of the Rules to his behavior. The substance

of his testimony was that he believed these rules only applied

to him when he was actually working as a lawyer, and not at

any other time. This view is, of course, incorrect. The Rules

of Professional Conduct govern the conduct of lawvers in

all their actions. Many attorneys have been disciplined over

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Appendix C

the years for actions outside of traditional legal activities.

ven more troubling to the panel is Mr. Hale's belief that he

alone will decide when the rules applied to him, and when

they didn’t. |

Mr. Hale also made the statement (Hearing Transcript,

p.269-270) that the Rules of Professional Conduct

(specifically Rule 8.4(a)5 which forbids adverse

discriminatory treatment of others) did not apply to his

“private behavior in the exercise of his religion”. In other

words, 1f Mr. Hale believed that what he was doing was in

the exercise of his religion (as determined by himself) then

the Rules of Professional Conduct would not apply to him.

Mr. Hale’s own words lead to the conclusion that he intends

to follow the Rules only when he feels like it, and feels free

to disregard them at any time, as he deems necessary.

Rule $.4(a)5 of the Rules of Professional Conduct states

as tollows:

(a) A lawyer shall not:

(5) engage in conduct that is prejudicial to

the administration of justice. In relation thereto,

a lawyer shall not engage in adverse

discriminatory treatment of litigants, jurors,

witnesses, lawyers, and others, based on race, sex,

religion, or national origin. This subsection does

not preclude legitimate advocacy when these or

similar factors are issues in the proceeding;

10a

Appendix C

Mr. Hale is the leader of an organization called the

Worldwide Church of the Creator. In this capacity he

maintains and supports an Internet website which details his

views. Mr. Hale’s publicly displayed views are diametrically

opposed to the letter and spirit of Rule 8.4(a)5. One document

that Mr. Hale believes in is entitled “The Sixteen

Commandments of Creativity”. This document ts part of the

record herein. Commandment 4 states: “The guiding

principle of all your actions shall be: What 1s best for the

White Race?”. Commandment 6 states: “Your first loyalty

belongs to the White Race.” Commandment 7 states: “Show

preferential treatment in business dealings with members of

your own race. Phase out all dealings with Jews as soon as

possible. Do not employ niggers or other coloreds.”. In

another document on his website entitled “The Essence of

the one and only true White Racial Religion — Creativity”

he states: “What is good for the White race 1s the highest

virtue; What is bad for the White Race is the ultimate sin”.

Mr. Hale’s long standing and strongly held belicfs are

in absolute contradiction to the letter and spirit of Rule

8.4(a)5. He is absolutely entitled to hold these beliefs, but at

the same time the public and the bar are entitled to be treated

fairly and decently by attorneys. The question before this

panel is whether Mr. Hale can put aside his beliefs and

comply with the Rules of Professional Conduct.

Mr. Hale’s statement that he can comply with the Rules,

cannot be the end of the inquiry. If it is, then there is no

need for a Character and Fitness hearing; the applicant's

statement 1s conclusive. This panel believes that where there

is evidence of other character and fitness problems that an

Appendix C

inquiry into whether the applicant can comply with the Rules

of Professional Conduct is justified. The panel is aware of

the United States Supreme Court cases cited by the applicant

on this issue, but in all of them there was no evidence of bad

character of the applicant; there is such evidence in this case

(eg. academic probation, an Order of Protection, the

Roberson letter). Under such circumstances, Mr. Hale cannot

wrap himself in the First Amendment and avoid any inquiry

into his character and fitness. Mr. Hale’s beliefs do not

exempt him from obeying the same rules as every other

attorney. '

Having considered the evidence, and after observing Mr.

Hale's testimony, the panel finds insufficient evidence that

he will uphold the Rules of Professional Conduct.

2. The panel is also concerned about a letter that Mr.

Hale sent to a Ms. Roberson on July 22, 1995. At that time,

Mr. Hale was a 24 year old college graduate, about to enter

law school that fall. The letter was in response to Ms.

Roberson’s published comments in support of Affirmative

Action programs. The actual letter is part of the record herein.

To say that the letter is insulting and totally inappropriate,

is to put it mildly. To suggest, as the applicant did in his

brief, that the letter does not contain “fighting words” and is

therefore protected from our scrutiny by the First Amendment

is simply erroneous.

Mr. Hale was questioned about the letter by the panel.

He had the chance to clearly and positively repudiate it, to

attribute it to youth, or poor judgment — he did not do so.

In fact, he stated that this letter, referring to Ms. Roberson’s

l2a

Appendix C

rape or murder at the hands of a “nigger beast” was not

beyond the pale of a letter a lawyer would write. (This

statement is contained on p. 243 of the transcript at lines 21

and 22. The word “payoff” on line 22 is incorrect, it should

be “pale of’). Mr. Hale also testified that he did not feel that

the reference to a rape or murder by a “nigger beast” was

insulting. (Transcript p. 217).

This statement shows a monumental lack of sound

judgment. This lack of judgment will surely set the applicant,

if admitted to the bar, on a collision course with the Rules of

Professional Conduct. Is there any doubt that a lawyer who

wrote such a letter would find himself before the Attorney

Registration and Disciplinary Commission? Yet, based on

the evidence, and his own statements it is clear to the panel

that Mr. Hale would do this kind of thing again if admitted

to the bar.

Finally, the panel believes that Mr. Hale was not candid

and open with the panel during the hearing. The panel heard

his testimony, but more importantly observed his demeanor

while testifying. There are many occasions in the record when

he answered a question with a question, or answered with a

speech or narrative which was not responsive to the question.

A good example of this lies in his testimony about his alleged

disruption of a prayer breakfast at Bradley University

(Transcript pp. 226-232; 245-247).

In the preamble to the Rules of Professional Conduct it

is stated: “The practice of law is a public trust. Lawyers are

the trustees of the system by which citizens resolve disputes

among themselves, punish and deter crime, and determine

ee ee ens

enn

i

3

I3a

Appendix C

their relative rights and responsibilities toward each other

and their government.” Because of the power and influence

that lawyers have over others, and because of their vital

position in our system of justice, there is a high standard for

admission to the bar, and the burden is on the applicant to

prove he should be admitted.

The panel has reviewed the entire record, and based on

that record, and in light of the foregoing finds that Mr. Hale

has not met his burden of proof and therefore has voted that

he not be recommended for certification.

l4a

APPENDIX D — DECISION OF INQUIRY PANEL OF

THE COMMITTEE ON CHARACTER AND FITNESS

OF THE SUPREME COURT OF ILLINOIS FOR THE

THIRD APPELLATE DISTRICT

DATED DECEMBER 16, 1998

BEFORE THE COMMITTEE ON

CHARACTER AND FITNESS

FOR THE THIRD APPELLATE DISTRICT OF THE

SUPREME COURT OF ILLINOIS

IN THE MATTER OF:

THE APPLICATION FOR ADMISSION TO THE BAR

OF MATTHEW F. HALE

DECISION OF INQUIRY PANEL

Introduction

Matthew F. Hale has applied for admission to the Bar of

Illinois after having passed its examination conducted in the

summer of 1998. Pursuant to Rule 5.la of the Rules of

Procedure for the Committees on Character and Fitness his

application was referred to a member of the Third District

Committee for consideration. After reviewing the application

that member was not prepared to recommend the certification

of Mr. Hale to the Illinois Board of Admissions.

Accordingly, pursuant to Rule 5.2a, the Chairperson of

the Third District Committee assigned the application to this

Inquiry Panel for further review and examination. Because

a majority of the members of the Inquiry Panel have voted

to withhold the certification of the applicant, the matter will

1

pe Re ee a hae

15a

Appendix D

now be referred to a Hearing Panel pursuant to Rule 5.3a. In

declining to certify the applicant and thereby causing the

matter to be referred to a Hearing Panel, we are setting forth

our reasons for this decision in some detail.

Rule 4.1 of the Rules of Procedure places the burden on

the applicant to prove by clear and convincing evidence that

he has the requisite character and fitness for admission to

the practice of law. Nonetheless, the denial of a request for

admission results in serious adverse consequences for the

applicant, as noted by the United States Supreme Court in

Konigsberg v. State Bar of California, 353 U.S. 252.

257-258, 1 L Ed. 2d 810, 816, 77 S.Ct. 722 (1957):

The Committee’s action prevents him from

eaming a living by practicing law. This deprivation

has grave consequences for a man who has spent

years of study and a great deal of money in

preparing to be a lawyer.

Additionally, as discussion will demonstrate, the reasons

for our decision relate to the applicant’s active advocacy of

his core beliefs. When an issue of that type is injected into

the reasons for denial of certification, “a heavy burden lies”

upon the State to demonstrate that “‘a legitimate state interest”

is sought to be protected. Baird y. Arizona, 401 U.S. 1, 6-7,

27 L.Ed. 2d 639, 647, 91 S.Ct. 702 (1971). Under these

circumstances, the reasons for voting to deny certification

Should be carefully explained.

There is an additional reason for carefully explaining

the Inquiry Panel’s decision in advance of an opinion to be

16a

Appendix D

issued by the Hearing Panel. While the Hearing Panel may

well develop in greater detail the evidence which will inform

its decision, based upon a review of the applicant’s record

to date, our expectation is that the evidence will be largely

undisputed, and that the ultimate decision will rest primarily

upon an analysis of constitutional principles, as well as the

role of courts and the Bar in American society and our system

of government. Therefore, an early start at a discussion of

these overarching issues 1s appropriate.

The Facts

Matthew F. Hale 1s 27 years old, attended undergraduate

school at Bradley University in Peoria and received a J.D.

degree in 1998 from Southern Illinois University School of

Law at Carbondale. By his frank admission he is an avowed

racist who, since his teenage days, has been actively involved

in promoting white supremacy through organizations and by

the distribution of literature. This literature portrays blacks,

Jews, and other minorities in an extreme negative light.

Attached to this decision is a short autobiography of Mr.

Hale.

Mr. Hale is currently the head of an organization called

the World Church of the Creator which is claimed to be a

religious organization. His title as head of this church is

Pontifex Maximus (Supreme Leader). In the attached

autobiography, Mr. Hale has stated that “he would dedicate

his life to Creativity,” referring to the World Church of the

Creator. This religion, according to its founder, Ben Klassen,

has as one of its major tenets the hatred of Jews, blacks and

other colored people.

17a

Appendix D

Mr. Hale’s church admires Adolph Hitler and the

National Socialism movement as practiced in Germany,

except that it holds Hitler was mistaken in promoting only

German nationalism. Instead, his church believes that Hitler’s

ideas relating to racial superiority should have been applied

for the benefit of the entire “white race as opposed to just

Germans.

Mr. Hale and his church disavow violence and an

intention to seek the forcible overthrow of the United States

Government. However, Mr. Hale stated in his interview with

us that if his organization would gain power by peaceable

means it would call for the deportation of Jews, blacks and

others whom his church refers to as “mud races.” The United

States would then become a country for members of the

“white race” only.

The Inquiry Panel’s interview with Mr. Hale occurred

November 25, 1998. At that time, Mr. Hale was extremely

polite and answered all questions quite candidly. He is

intelligent and articulate. He stated that after becoming a

lawyer he would continue his activities as leader of his

church, including his distribution of racist literature. He also

plans to be active on the Internet to promote his church’s

racist views. (See p. 11, infra.)

On the issue of moral character, he argued that his frank

and open admission of the advocacy of racism shows greater

moral character than do lawyers and others who are in fact

racist but who utter such thoughts only in privacy.

18a

Appendix D

Mr. Hale was asked whether or not he could take the

oath to support the United States Constitution and the

Constitution of the State of Illinois in good conscience. See

705 ILCS 205/4. He unhesitatingly answered that he would

have no difficulty even though, based on his beliefs, he

obviously would be in substantial disagreement with current

interpretations of the constitutions. He likened his situation

to that of a judge or jury whose duty it is to follow the law

even though they may disagree with it.

In connection with the oath, he was shown Article 1,

§ 20 of the Constitution of the State of Illinois which

condemns “communications that portray criminality,

depravity or lack of virtue in, or that incite violence, hatred,

abuse or hostility toward, a person or group of persons by

reason of or by reference to religious, racial, ethnic, national

or regional affiliation.” In response, Mr. Hale said that to

the extent this Illinois constitutional provision limited

“communications,” it would run afoul of the First

Amendment to the Constitution of the United States and

therefore would not be binding on him. '

Additionally, Rule 8.4(a)(5) of the Rules of Professional

Conduct for lawyers was brought to his attention. Mr. Hale

was asked if he could abide by that rule if admitted to the

Bar. The rule, in part, states that a lawyer shall not

engage in conduct that is prejudicial to the

administration of justice. In relation thereto, a

1. This Illinois constitutional provision appears to be advisory

only and not susceptible of being violated.

19a

Appendix D

lawyer shall not engage in adverse discriminatory

treatment of litigants, jurors, witnesses, lawyers,

and others, based on race, sex, religion, or national

origin.

Again, Mr. Hale stated that he would have no problem

with following this rule, reaffirming his statements that he

would follow the law until such time as he could have it

changed by peaceful means. He also said that in a recent

employment in Champaign where he worked as a law clerk

for a few months, he dealt with black clients and engaged in

no acts of racism toward them. The accuracy of this statement

was confirmed by independent inquiry.

Analysis Of Moral Character

As noted, the applicant must establish his “good moral

character and general fitness to practice law” “by clear and

convincing evidence.” (Supreme Court Rules 708(b), 709(b)

and Rule 4.1 of Rules of Procedure of Committees on

Character and Fitness.) If these requisites may be established

by simply showing an absence of criminal conduct in the

past and having one or more persons vouch for one’s

character, Mr. Hale has established these requisites by clear

and convincing evidence.”

2. Mr. Hale was convicted of two city ordinance violations

related to the advocacy of his beliefs. The Inquiry Panel attaches no

significance to these convictions because countless individuals have

been admitted to the Bar with more serious criminal violations.

Additionally, the Inquiry Panel has doubts as to the legality or at

least the appropriateness of these convictions because they related

to the exercise of constitutionally protected activity and Mr. Hale

may have been selectively prosecuted on account of his views.

20a

Appendix D

On the other hand, if the lack of good moral character

and general fitness to practice law may be judged on the

basis of active advocacy that attempts to incite hatred of

members of various groups by vilifying and portraying them

as inferior and robbing them of human dignity, Mr. Hale has

not established good moral character or general fitness to

practice law. As indicated, Mr. Hale’s life mission is to bring

about peaceable change in the United States in order to deny

the equal protection of the laws to all Americans except

perhaps those that his church determines to be of the “white

race.” Under any civilized standards of decency,’ the

incitement of racial hatred for the ultimate purpose of

depriving selected groups of their legal rights shows a gross

deficiency in moral character, particularly for lawyers who

have a special responsibility to uphold the rule of law for all

persons.”

3. See references in the United Nations Charter and the UN’s

Universal Declaration of Human Rights at notes 8 & 9 on p. 13,

infra.

4. In the recent case of Jn re A.L., No. 3-98-96 (3rd Dist.

11/13/98), the Appellate Court cited bigotry as evidence of depravity

which has been defined as the opposite of good moral character.

See /n re Abdullah, 85 Il.2d 300, 53 Ill.Dec. 246, 248, 423 N.E.2d

915,917 (1991), which held that “depravity is ‘an inherent deficiency

of moral sense and rectitude.””

Bigotry, as well as evil generally, is bottomed on irrationality.

By contrast, our legal system is designed to produce rational results.

Individual rights are at the cornerstone of law and justice. These

rights are extolled in the Declaration of Independence, the Bill of

Rights and other documents cited in this opinion. In our courts, facts

(Cont'd)

2la

Appendix D

However, even if the Illinois standards for considering

moral character and general fitness to practice law allows

the Committee to make a determination in this manner, the

question remains as to whether or not denying certification

for admission to the Bar is constitutional on that basis.

The Constitutional Analysis

At an earlier time the Committee on Character and

Fitness might have desired to disqualify Mr. Hale on the

ground that, despite his statements to the contrary, his views

make it impossible for him to take the required oath “in good

conscience.” See, e.g., /n Re Anastaplo, 3 I\l.2d 471, 476,

121 N.E.2d 826 (1954) and Jn Re Latimer. 11 Ill.2d an,

336, 143 N.E.2d 20 (1957). Also see In Re Anastaplo,

18 Ill.2d 182, 163 N.E.2d 429 & 928 (1959), aff'd 366 US.

82, 6 L.Ed.2d, 135, 81 S.Ct. 978 (1961).

Moreover, the Membership Manual for his church, which

is on the Internet, describes 15 attributes of a church member

under a heading entitled, “The Essence of a Creator,” The

(Cont'd)

matter so that each individual is entitled to be rationally judged on

the particular circumstances of his or her case, with an impartial

application of the law to the facts.

But the applicant regards these considerations as irrelevant. All

that matters to him is whether someone is or is not a member of the

“white race,” as defined by his church. Such an irrational worship

of race for the ultimate purpose of determining legal rights is not

only depraved and immoral, but a rejection of all that law, lawyering

and judging is meant to accomplish.

22a

Appendix D

number I essence listed is that “A CREATOR puts loyalty

towards his own race above every other loyalty.”

(http://www.rahowa.com/manual.htm.) A reasonable

question for the applicant is what happens when that loyalty

conflicts with his oath to support the United States and

Illinois Constitutions?

Additionally, even though Mr. Hale claimed to be able

to abide by the Rules of Professional Conduct relating to

non-discriminatory treatment, his activities in this regard

arguably cast doubt on these representations. For example,

in 1995, only a few weeks before he started law school, he

wrote a letter to a woman who apparently had made

comments in the Peoria Journal Star on racial issues that

were contrary to his. In this letter he referred to “the nigger

race” as “inferior in intellectual capacity” and condemned

the “misbegotten equality myth” as “garbage” that was

“destroying” “our whole country.” (Emphasis in original.)

He also suggested that this woman’s rape or murder by a

“nigger beast” might enlighten her.

With the applicant capable of such outrageous and

intemperate conduct, one might have concluded thai he was

insincere when he said he could comply with the Rules of

Professional Conduct and conscientiously take the oath.

However, later cases of the United States Supreme Court

suggest that these very real questions about the applicant

might be a frail reed upon which to deny certification. See,

e.g., Bond v. Floyd, 385 U.S. 116, 132, 17 L.Ed.2d 235, 245,

87 S.Ct. 339 (1966) and Law Students Research Counsel v.

Wadmond, 401 U.S. 154, 163-164, 27 L.Ed.2d 749, 759, 91

S.Ct. 720 (1971), which appear to hold that once an oath to

23a

Appendix D

support the Constitution is taken, others cannot urge that it

was not taken sincerely.

| Finally, an applicant cannot be denied admission to the

| Bar on a ground formerly announced by the Illinois Supreme

Court — “that the practice of law is a privilege, not a right.7>~—

In Re Anastaplo, 3 11.2d 471 , 482 (1954). On the contrary,

the United States Supreme Court later stated that “the practice

of law is not a matter of grace, but of right for one who is

qualified by his learning and his moral character.” Baird y.

Arizona, supra, 401 U.S. 1 at 8, 27 L.Ed.2d 639 at 648.

Absolute First Amendment Rights vs. A Balancing Test

The easiest resolution of Mr. Hale’s application would

be to certify him. This would be in accord with the view that

the First Amendment is virtually absolute. By adhering to

such a view, line drawing problems and degree questions

are avoided, and as the dissenting opinion makes clear, the

analysis for reaching a decision can be simple and direct.

Certainly statements found in some Supreme Court

opinions, taken in isolation and withcut regard to the specific

facts of the cases, might support this view. For example, in

the bar admission case of Re Stolar, 401 U.S. 23, 28-29, 27

L.Ed. 2d 657, 663, 91 S.Ct. 713 (1971), it was stated that

the State cannot “penalize petitioner solely because he

personally . . . ‘espouses illegal aims.’ ”

Nonetheless, on balance, a majority of the Inquiry Panel

has concluded that the constitutional issues involving a case

24a

Appendix D

precisely like this one are open,°* and that the I]linois

requirement for moral character and general fitness to

practice law precludes the applicant from being certified,

(See Analysis of Moral Character, pp. 6-7, supra.)

The latest United States Supreme Court decisions

relating to bar admissions located by the Inquiry Panel are

over 25 years old. In 1971, the year of its most recent cases

on this subject, the Court characterized its earlier opinions

as containing “confusing formulas, refined reasonings, and

puzzling holdings.” Baird v. Arizona, 401 U.S. 1, 4, 27

L.Ed.2d 639, 645, 91 S.Ct. 702 (1971).

In that case, the Court, in a 5 to 4, split decision, held

that “a State may not inquire about a man’s views or

associations solely for the purpose of withholding a right or

benefit because of what he believes.” 401 US. 1 at 7,

27 L.Ed.2d 639 at 647. The Court also said in that case:

5. While First Amendment issues in this case are difficult and

troublesome, we don’t include “the free exercise” of “religion”

among them. Our decision would be the same if Mr. Hale professed

no religion, and his autobiography shows that his racist views

evolved long before he discovered the World Church of the Creator.

For an extensive discussion of the case law on the regulation of

conduct stemming from religious beliefs, see Employment Division

v. Smith, 494 U.S. 872, 108 L.Ed.2d 876, 110 S.Ct. 1595 (1990).

“Smith held that neutral, generally applicable laws may be applied

to religious practices even when not supported by a compelling

governmental interest.” City of Boerne v. Flores, 521 U.S. 507, _,

138 L.Ed.2d 624, 635, 117 S.Ct. 2157 (1997). The latter case

invalidated the Religious Freedom Restoration Act of 1993

(42 U.S.C. §§ 2000bb, et seq.) which had been enacted for the

purpose of overturning Smith.

25a

Appendix D

The First Amendment’s protection of

association prohibits a State from excluding a

person from a profession or punishing him solely

because he is a member of a particular political

organization or because he holds certain beliefs.

(Emphasis added.) 401 U.S. 1, at 6, 27 L.Ed.2d

639 at 646-647.

A similar result in another 5 to 4 decision was reached on

the same day in 1971 in the case of Re Stolar, 401 U.S. 23,

31, 27 L.Ed.2d 657, 665, 91 S.Ct. 713 (1971).

Neither of those decisions involved individuals who were

actively involved in inciting racial hatred and who had

dedicated their lives to destroying equal rights under law

that all Americans currently enjoy. On the contrary, the

applicants in those cases refused to reveal their views.

But in this case Matthew Hale has no interest in keeping

his views a secret. In a 1997 interview that appears on the

Internet, he said that “we have several websites going

now.... We are ... hoping to expand all these operations

. to give people full knowledge of Creativity ....”

(http://hatewatch.org/weotc/haleinterview.html.) And his

attached autobiography proclaims “that he looks forward to

leading Creativity to worldwide White Victory!”

The case of Elrod v. Burns, 427 U.S. 347, 362, 49 L.Ed.

247, 559, 96 S.Ct. 2673 (1976), laid down the following

formula for evaluating whether or not a public employee may

have his First Amendment rights curtailed:

26a

Appendix D

It is firmly established that a significant

impairment of First Amendment rights must

survive exacting scrutiny .... The interest

advanced must be paramount, one of vital

importance, and the burden is on the government

to show the existence of such an interest.

Assuming that the courts would apply the stringent Elrod

formula for public employees to bar admission cases,” we

believe that the impairment of First Amendment rights that

the Panel’s decision affects does survive exacting scrutiny

and that the interest advanced with respect to the role of the

legal profession, hereafter to be explained, is paramount. The

Supreme Court has also utilized a balancing test in public

employment cases.’ In Pickering v. Board of Education, 39]

U.S. 563, 568, 20 L.Ed.2d 811, 817, 88 S.Ct. 1731 (1968),

the Court said:

.. It cannot be gainsaid that the State has

interests as an employer in regulating the speech

of its employees that differs significantly from

those it possesses in connection with regulation

of the speech of the citizenry in general. The

problem in any case is to arrive at a balance

6. This formula appears to be in accord with the Supreme

Court’s statement in the bar admission case of Baird v. Arizona,

quoted at p. 2, supra.

7. Public employment cases, unlike bar admission cases,

usually arise where the party seeking relief already holds a

governmental position and is not applying for one. See, e.g., Perry

v. Sindermann, 408 U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694 (1972).

27a

Appendix D

between the interests of the teacher, as a citizen,

in commenting upon matters of public concern

and the interest of the State, as an employer, in

promoting the efficiency of the public services it

performs through its employees. (Emphasis

added.)

The Commitment Of The Bar To Fundamental Truths

The balance that the majority chooses requires that a

lawyer cannot, as his life’s mission, do all in his power to

incite racial and religious hatred among the populace so that

it will peaceably abolish the rule of law for all persons save

those of the “white race.” Instead, and by rejecting Matthew

Hale’s application, let it be said that the Bar and our courts

stand committed to these fundamental truths:

* All persons are possessed of individual dignity.’

* As a result, every person is to be judged on the basis

of his or her own individuality and conduct, not by reference

to skin color, race, ethnicity, religion or national origin.’

8. In condemning communications that incite racial hatred, the

Illinois Constitution, Article I, § 20, commences with the phrase,

“To promote individual dignity,....” Similarly, the United Nation’s

Charter refers to “the dignity and worth of the human person” and

the UN’s Universal Declaration of Human Rights, which was 50

years old this month, recognizes “the inherent dignity ... of all

members of the human family.”

9. The documents cited in the preceding footnote condemn

discrimination in all forms and in general echo our Declaration of

Independence which holds that “all men” have “certain unalienable

Rights,” like “Life, Liberty and the pursuit of Happiness.”

28a

Appendix D

* The enforcement and application of these timeless

values to specific cases have, by history and constitutional

development, been entrusted to our courts and its officers

— the lawyers — a trust that lies at the heart of our system

of government.'®

¢ Therefore, the guardians of that trust — the judges

and lawyers, or one or more of them — cannot have as their

mission in life the incitement of racial hatred in order to

destroy those values.

Commencing with Jefferson’s ringing declaration that

all men are created equal, and continuing with the adoption

of our Constitution, the Emancipation Proclamation and the

Fourteenth Amendment, the moral, ethical and legal struggle

for the precious values contained in those writings has been

costly, difficult and long. The Bar and our courts, charged

with the duty of preserving those values, cannot allow Mr.

Hale or any other applicant the use of a law license to attempt

their destruction.

Finally, and this is the heart of our analysis, the

majority’s judgment is that to the extent its decision limits

the First Amendment activities of lawyers, the fundamental

truths identified above are so basic to the legal profession

10. The Preamble to the Illinois Rules of Professional Conduct

states that “The practice of law is a public trust.” The Preamble

later refers to lawyers “as officers of the court.” Both of these

concepts appear in Illinois Supreme Court cases throughout this

century. See, e.g., The People v. Payson, 215 Ill. 476, 486-487,

74 N.E. 383 (1905) and Jn re Both, 376 lll. 177, 182, 33 N.E.2d 213

(1941). Also see Justice Frankfurter’s statement above.

29a

Appendix D

that, in the context of this case, they must be preferred over

the values found in the First Amendment. The relationship

of the profession to those truths was eloquently described in

Schware v. Board of Bar Examiners, 353 US. 232, 246,

| L.Ed.2d 796, 806, 77 S.Ct. 752, 64 A.L.R.2d 288, 299

(1957), by the late Justice Felix Frankfurter in a concurring

opinion:

... all the interests of man that are comprised

under the constitutional guarantees given to “life,

liberty and property” are in the professional

keeping of lawyers.

The balance of values that we strike leaves Matthew Hale

free, as the First Amendment allows. to incite as much racial

hatred as he desires and to attempt to carry out his life’s

mission of depriving those he dislikes of their legal rights.!!

But in our view he cannot do this as an officer of the court.

A preference for antidiscriminatory values over the First

Amendment would not be new to Supreme Court decision

making. Only five years ago the Court unanimously rejected

First Amendment claims that “hate crimes” penalty

enhancement statutes were invalid. The Court described

Wisconsin’s statute:

11. Under the First Amendment, a state may not criminalize

Mr. Hale’s actions in preaching racial hatred “except where such

advocacy is directed to inciting or producing imminent lawless action

and 1s likely to incite or produce such action.” Brandenburg v. Ohio,

395 U.S. 444, 447, 23 L.Ed.2d 430, 434, 89 S.Ct. 1827 (1969).

30a

Appendix D

Thus, although the statute punishes criminal

conduct, it enhances the maximum penalty for

conduct motivated by a discriminatory point of

view more severely than the same conduct

engaged in for some other reason or for no reason

at all. Wisconsin v. Mitchell, 508 U.S. 476, 485,

124 L.Ed.2d 436, 445, 113 S.Ct. 2194 (1993).

Nonetheless, the Supreme Court had no difficulty in

finding the statute constitutional because “hate crimes” are

“thought to inflict greater individual and societal harm.” 508

U.S. 476 at 488, 124 L.Ed.2d 436 at 447. Arguably, the

rationale in this case for preventing the applicant from

becoming an officer of the Court is stronger than it was in

the “hate crimes” case.

CONCLUSION

The late Supreme Court Justice Robert Jackson,

America’s chief war crimes prosecutor at Nuremberg, wrote

during World War II in West Virginia Board of Education v,

Barnette, 319 U.S. 624, 638, 87 L.Ed. 1628, 1638 (1943);

The very purpose of a Bill of Rights was to

withdraw certain subjects from the vicissitudes

of political controversy, to place them beyond the

reach of majorities and officials and to establish

them as legal principles to be applied by the

courts. One’s right to life, liberty, and property,

to free speech, a free press, freedom of worship

and assembly, and other fundamental rights may

not be submitted to vote; they depend on the

outcome of no elections.

31a

Appendix D

Jackson’s statement that the immutable principles of the

Bill of Rights are to be “applied by the courts” has

significance because “[{t]here ... comes from the [legal]

profession the judiciary.” /n re Anastaplo, 3 Ill.2d 471, 479,

121 N.E.2d 826 (1954). Mr. Hale’s life mission, the

destruction of the Bill of Rights, is inherently incompatible

with service as a lawyer or judge who is charged with

safeguarding those rights.

The quotation from Barnette is important for another

reason. Justice Jackson concluded that “fundamental rights

may not be submitted to vote.” But Mr. Hale wants to do

exactly that, and it is a chilling thought indeed, considering

that he and his church are admirers of Adolph Hitler, who

acquired his absolute power peacefully, “quite legally” and

“in a perfectly constitutional manner.”"””

12. The Rise and Fall of the Third Reich, A History of Nazi

Germany, by William L. Shirer, Simon and Schuster, New York

1960, pp. 199 and 187.

For purposes of our discussion, we find no meaningful

difference between a destruction of the Bill of Rights that would

accompany an election, as opposed to one that would follow a

forcible overthrow of the government. As noted, Nazi Germany was

created legally, but the Soviet Union arose out of revolution.

Regardless, merely holding private theoretical beliefs favoring

either form of change is not a legal basis for disqualifying a bar

applicant. Again, see Baird v. Arizona, supra, and Re Stolar, supra.

Also see Keyishian v. Board of Regents of New York, 385 U.S. 589,

599-600, 17 L.Ed.2d 629, 638-639, 87 S.Ct. 675 (1967). However,

as Mr. Hale candidly admits, he has crossed a threshold from merely

(Cont'd)

324

Appendix D

If the civilized world had no experience with Hitler,

Matthew Hale might be dismissed as a harmless “crackpot.”

However, history teaches a different lesson. In his defining

study of Nazi Germany, William L. Shirer concluded his

discussion of Hitler’s death camps with the following

passage:

There were some ten million Jews living in

1939 in the territories occupied by Hitler’s forces.

By any estimate it is certain that nearly half of

them were exterminated by the Germans. This was

the final consequence and the shattering cost of

the aberration which came over the Nazi dictator

in his youthful gutter days in Vienna and which

he imparted to — or shared with — so many of

his German followers."

(Cont'd)

believing to actively inciting racial hatred for the avowed purpose

of abolishing the Bill of Rights except for those of the “white race,”

and he plans to continue to do this as a lawyer.

Therefore, contrary to the dissent’s statement, the majority

decision does not require that future applications be scoured to

determine each applicant’s beliefs and opinions. Clearly, and as

discussed, the foregoing Supreme Court cases preclude such an

activity by a bar committee. Similarly, the majority concludes,

contrary to the dissent, that there is a significant qualitative difference

between a bar applicant who may disagree with some of our laws,

like the Dram Shop Act for example, and one whose life mission is

the incitement of racial hatred for the purpose of abolishing equal

justice under law — the very principle that the Bar and our courts

are charged with preserving.

13. /d., pp. 978-979.

33a

Appendix D

While Matthew Hale has not yet threatened to

exterminate anyone, history tells us that extermination is

sometimes not far behind when governmental power is held

by persons of his racial views. The Bar of IIlinois cannot

certify someone as having good moral character and general

fitness to practice law who has dedicated his life to inciting

racial hatred for the purpose of implementing those views.

Respectfully submitted this

16th day of December, 1998.

Judge Gregory McClintock,

Chairperson of Inquiry Panel

Stuart Lefstein,

Member of Inquiry Panel

34a

Appendix D

Dissenting Opinion

Matthew Hale, in his application and interview, plausibly

asserts he can hold racist views and practice law in

accordance with his oath as an attorney and there’s no

evidence of any conduct otherwise.

Until there is such conduct, the holding and even active

advocacy of beliefs, no matter how repugnant to current law,

cannot be the basis for denial of certification to an applicant

who will subscribe to the oath. All lawyers disagree with

some laws. Otherwise, character and fitness evaluations will

have to review the beliefs and scrutinize the papers, speeches

and opinions of every applicant to the bar. This type of

scrutiny is not a requirement. It is replaced by the applicant’s

promise to subscribe to the oath and to comply with the Code

of Professional Responsibility.

Time will tell if Matthew Hale can in fact practice law

in accordance with his oath while holding extremist views.

The Rules of the Attorney Registration and Disciplinary

Commission of the Illinois Supreme Court are the

profession’s and the public’s protection against any abuse.

That such abuse may occur is only speculation at this time.

Matthew Hale clearly understands the distinction.

Respectfully submitted this

16th day of December, 1998.

Lawrence W. Baxter,

Member of Inquiry Panel