# Petition for Writ of Certiorari — Hale v. Committee on Character & Fitness of the Illinois Bar > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1021%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2000 - **Citation:** 530 U.S. 1261 ## Text 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 ~ cree eamete 157665 @J Counsel Press LLC (800) 274-3321 +» (800) 359-6859 1) 2) i 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 Fame OF Comes 2b i ks eee eee Fable of AQpemGiete .....c.54.c00< kee Oprnsons Bae ook ecu kiaae epee 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 nN 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. ne ene s&s Bee Ss Oe 8 OS SP. ee eb ee Conclusion Rae nil tir sah Ah ache ic 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 ... l4a tit, ese ia MEMO a en l 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. elt ad ARRAS AUR PN Godelier Ss 4 ‘ : 2 4 3 3 4 3 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... . secenienieeiieiiaiiiibiitiiiiiaiaiaiiiiaaadl ILE LLL LLL LLL, ALT 5 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 - 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 la 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 —— tid oe ee eee , 3a 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 A RSE SS Sete BASIS HR TE RNR ERD SED ASP sy basiiaadabepidsst Secas pte RESID Er SOE TG ONL Sa OR dlancen hea Sa 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, SN es ey oe ee dan dala Nattide wis bikifate 2s Sees 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 CD Rta De ab FeO i CNY ohare) pe tew ey ltl heh dlnsie tree ah : 4 : E | a | : 9a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1021%3A1. Public record. Not legal advice.