# Respondents Brief in Opposition to Petition for Writ of Certiorari — Konigsberg v. State Bar of Cal. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0351%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1961 - **Citation:** 366 U.S. 36 ## Text © IN THE r,t Te Pa a r Ceu : ALE COPY. (> tTESS I 2 “: ‘FEB 16: 1960 JAMES R. BROWNING, Clerk — — Supreme Court: of of the United ‘States > ioe, ‘cade Sein Term, 1959. i - No. . at R AP HAEL ‘Kowrcsnenc, Petitioner, _ Us. ; a oe ie ~ Tue STATE BaR OF CALIFORNIA and the CoMMITTEE OF Bar EXAMINERS OF THE STATE Bar oF CALIFORNIA, ‘Respondents. RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION, FOR WRIT OF CERTIORARI. : Frank B. Barcuzn, } a | 510 South Spring Street, Los. Angeles 13, California, Reis a Attorney for Respondents. Rapa E. Lewis, ; 3 R bert D, Burcu, Tele We Of Counsel. ~~ Parker & Son, Inc, Law Printers, Los Angeles. Phone MA. 65171. 4 7 ‘s a % SUBJECT INDEX —,--—— PAGE ‘Questions presented +--+ coo eeecneymmmgissneeescenseeenenanessons a , Constitutional and statutory provisions considered........................ * TL. se a i a IV. Reasons why ‘certiorari should not be granted... A. B. The denial of Mr. Konigsberg’s application for admission to the California Bar by the California Supreme Court is completely consistent with the dectsion. of the United States Supreme Court in” Konigsberg v. State Bar, 353 te SE ne platessa It is the duty of the Committee of Bar Examiners and the Supreme Court of the State of Californi deter- “titine whether an applicant is qualified to prattice law within the State. Petitioner is not entitled to a writ of certiorari merely to re-try the issue of his qualifications... The refusal of the Suprertie Court of the State of Cali- fornia to-admit to the practice of law an applicant who prevents determination of his qualifications by refusing to - disclose the nature and extent of his association with ‘the Communist. Party in the present and recent past does not present any substantial federal question not. previously decide! by this. court. Pen tT NTs at CA _ (1) Petitioner was explicitly » onal of the consequehces of his refusal to answer.. sicachaabaiainaiphcatciMebscsaslabisiads . 10 is. lo = ie is - — = . 4° (2) Decisions of this court since. Konigsberg v. State Bar, 353 U. S. 252, have obviated the existence of . any substantial questions relating to interference with * -* ° . _ ” egg” eae . nd . petitioner's right to the freedom of his speech.........:.. 19 ‘Appendix : : _ Exhibit “A.” Report of the Committee of Bar Examiners, Re SSG ea SO ee | Exhibit “B.” Report of .the Committee of Bar Examiners, . "Lk, A. No. PAS ID. 2. ceogontongeynoenes jecaiclboci eo He ed TAME App.. p. 5 a ~ . ! | ) xy . a a . rd © - .. = - ¥ \ ‘ a” . . TABLE OF AUTHORITIES CITED. ; 7 + CASES ‘ e PAGE: ‘ Anastaplo, George, In re, 348 UL S. 946, eh. den. 349 U. : | SNEED Rao oe Pin Miva ; meee 25 Jarenblatt v. United States, 3A) Ur S. 109... femelle | 24. teilan v. Board of Education, 357 U. S. 399.41, 18, 19, 21, 22, 24 Buhai v. Committee of Bar Exatniners, L.A. 24339, Bar Misc. ‘- | ee ee Acsinceasnesnbetensbieti *- RAED Senibinapunaeinnhre 24 Hallirian, In re, 43 Cal. 21 243, 272 P. 2d 768... styduowniavnicteitlon: aa Konigsherg y. State Bar, 52.A. C. 799, 344 P. 2d 777........ 9, 13, 17 Konigsberg v. State Bar,’ Be Se: SSRs 10, i, 17 Lavine, In re, 2 Cal. 2d 324, 41 Ps 2d GD. ncseteceyeteseeencenteeaene 14 Lerner v. Casey, 357 U. Die i iervietentvemsdenie ; : eaters 11, 21, 22, 24 ee, | a: . Enea nore cain 23 Slochower ve. Board of Higher Education, 330 U. S. 551° ne Summers) In re 325 uo. 561 ET IC a Loe >... ara wiey | Theard v. ‘United DS 2 i a SS Sane een eee 15 . Uphaus v. Wyman, 360 U. S.\72 whee nando . 23 STATUTES { California Business and Professions Code, Se 2, 13 California ficihanies "and , Professions- Code, Sec. 6064.1...... 2, 3, 1¥ California Constitution,. Art. A, a Pee ee ne Califoxnja Government Code, {ee GUET ‘ . * "Petitioner, US. _ Tur Stare Bar or CALiForNnia and the, COMMITTEE OF Bar EXAMINERS OF THEYSTATE BAR oF CALIFORNIA, , Respondents. . RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION FOR WRIT. OF CERTIORARI. . ; . ta) Questions Presented. 1. Is the denial. by the California Susecian Court of the petitioner's . application for admission ‘to the Baron the ground that he refused to disclose his relationship with the Communist Party in the present and recent oy Ge sistent with the decision ‘of this Court in Konigsberg v State Bar, 353 U. S. 252? 2. May a writ of certiorari ‘be: issued to retry the * issue whether Mr. Konigsberg is qualified to’ practice ‘law in the State of California. 3. Has any substantial federiil question been raised regarding the adequacy of the warning given to pegtioner that his contintied refusal to disclose his. relationship with — the C mmiunist - Party in the present and the recent past 7) \ ae . - would result in the “denial of his application for admission ° to the Bar?’ . 4. -Does the denial by the California- Supreme: Court - of the petitioner's ‘application for admission to the Bar on the ground that .he refused to disclose his relationship |. Ww ith the Communist Party in the present and ‘the recent past raise any substantial federal question which has. not » prev iously been decided by this Court where the questioris -- which he refused to answer were material to a proper investigation | “and determination of his qualifications for « admission to the California Bar? « — . “TL. Constitutional and Stacutory | Provisions. Considered, The Fourteenth Amendment provides; ““* * * No State shall make or enforce any law which shall abridge the privileges or immunities of ‘citizens of the United States; nor shall any State ~—deprive any person of life, liberty, or property, with- out due process of law ; ‘nor deny to any person within its jurisdiction the equal protection_of the laws.” 2 The basic act governing admission to the bar ‘in the . State. of California is to be found , in the Business and . Professions Code of the State of California. The prin- cipal sections involved are Sections _. and 6064.1. These sections read as follows: “Section . 6060. . QvALIFICATIOXS For APpPLi- CANTS:> . | ; “To be certified to the aie Court for admis: ” sion ‘and a license to practice law, a person’ who does not comply with section 6062 shall: | (a) Be a citizen of the ‘United States. ~ (b) Be of the age of at least 21 years. 5 ~ a ?(c) Be of goéd moral character. (d) Have been a bona fide resident of this State fer — ; | at least’ three months immediately prior to’ the _ date-of hix final bar examinatioh. ‘ “Section 6064.1. ONE ApvocaTING THE OVER- THROW OF GovERNMENT Not to Be ApMItTTED: - .. “No person who. advocates the overthrow of the Government of the .United States or of this State by force, violence, or other unconstigutional means, shall be certified to the Supreme Court for admission and + a license to practice law.” | III. Statement of the Case. In 195% the’ petitioner, Raphael Rasleitine:. applied for. admission to the Bar of the State of California. Thereafter hearings were conducted by the.Southern Sub- committee of. the Committee of Bar Examiners and by the full Committee to determi se whether petitioner could be certified to the California Supreme Court as qualified for admission. rn ; At these hearings, petitioner-presented_evidence of his qualifications. He was confronted with testimony that ° "he wds once a member of the Communist Party\and with other evidence which raised doubts in the mind of| the Sub- « committee and.the Committee whether they could properly ~~ . certify.him for admission. He was.asked, but consistently gs refused to answer, whether he was, yr had been, a member : of the Communist Party of the United States. The Committee determined that the petitioner had not sustained the burden of proof that he was possessed of a good moral charaeter and that he did not advoéate the - ‘possible overthrow of the government. ' re) “odes ea: . . : . od _ The Sifreme Court, of .California refused to review this determination; with three Judges voting for a hearing. .. On certiorari, this Court found that there was, insuffi- | cient evidence in the record rationally to support a. deter: mination that petitioner lacked. good moral character or advocated the violent overthrow of the government. The right of the Sfate to exclude Mr: Konigsberg from prac-_ tice because he refused to div ulge information regarding his background to those charged with investigating his qualifications, after. due. warning of the possible conse- quences of-his refusal, was expressly left open by the decision of this Court. : After remand, the Supremé Court of. California re- es ferred the matter to the Bar Examinérs for furthet in- vestigation and evaluation.. Pursuant .to the order of that" Court, the Committee conducted a further hearing on _ September .21, 1957. At this hearing, the petidoner was advised thai it was ° the statutory duty of the Conimittee, to conduct a thorough inquiry into his eligibility for admission to the Bar and. that it was his duty to. be completely candid and frank with the Committee. He was exhaustively warned, both before and after his examination, of the possible detri- mental consequences to a favorable consideration of his ~ application w hich would ensue from his refusal to-answer _questions relating to his membership in the Communist “Party: ) , a ' “I-have generally outlined to Mr. Mosk ‘the scope of the proposed hearing today. 1 should like to point ‘-out.to Mr. ASonigsberg, as well as to Mr. Mosk, that - the functions: of the Committee of Bar Examiners are - really two-fold: - First - ‘to invesfigute in connection, with the requirements for admission to practice set ” — forth in the Business and. Professions Code; and second to make determinations. 4s a result of our two-fold pur poset particularly our function of in- vestigation, we believe it will be necessary for you, Mr. Konigsberg, to answer our material. questions or our inve Stigation’ will be obstructed. We would not then as a-result be able to certify you for admission. If you have’ questions we shall certainly be happy to have your counsel or you ad ress them/to us. We ’ should certainly make every effort to limit our ques- ‘tions ta.those which are material ones. *- * * * * - * * x “Mr. Konigsberg, as indicated at the beginning of thjs proceeding, the Committee ‘is really charged with two functions, one to investigate, and: one to deter- mine. Your counsel has asked the Committee, asked me, for an indication as to the scope and purpose of this hearing. I indicated té him what the Scope and purpose is, and as a result you are aware of it. We ‘ are engaged in the function of investigating matters which we are charged with the esponsibility of de- termining under the law of the State of California. We have every intention and desire of carrying out . that investigative duty consistent with. the constiti “tional protections and freedoms that the United States - and the California ” constitutions provide. We still have an obligation to investigate. I believe that we are charged with this responsibility as it might apply to your. application for admission. That investigay tion can be carried out in a n@mber of ways. In connection with determining whether or not you meet the. minimum standards to practice law as far as the know ledge of the*subject of law is concerned, we have asked you ‘questions in’ an examination, and oe ‘ + you have given us answers. . In connection with other requirements for admission to practice, as set forth in the Business and Professions Code of California, we have asked you to fill out an application, which you have done. Also as part of our investigation and your satisfying each and all of these requirements to’ practice ‘law we have called you before the Com- - mittee. We have ask.d questions of you. We are merely now engaging in that investigation which we ~ haye engaged m by having hearings, by having you fill out applications, and by asking you to take an examination before. Now, this is part of that same function. * * * ae x« «* x* * . * “Mr. Konigsberg, I think won will recall that 1 initially advised you a failure to answer our material questions would obstruct our investigation and result in our failure to certify you. With this in mind do you wish to answer any of the questions which spon heretofore up to now have refused to answer?’ (Em- phasis added.) [Sept. Rec. pp. 4, 32, 39.]? The Committee also explained to the- petitioner. the pertinency of questions regarding : his membership in the Communist Party to its’ inquiry into his qualifications for admission to the Bar. *~ “Tf you answered the question, for example; that you had been a member of the Communist Party - during some period since 1951 or that you were presently a member of the Cothmunist Party, the 'The transcript of the ‘hearing of September 21, -1957,_ will he. cited as “Sept. Rec.” and in conformity with the yo ae em- ployed in the petitioner's brief. : 2 / + Committee would, then be in a position to ask you ’ what acts you engaged in to carry out the functions and purposes of that party, what the aims and our- poses of the party were, to your knowledgé, and questions of that type. - You see by failing to answer the initial question there certainly is no basis and no opportunity for us to investigate with respect to the other matters to which the initial question might very well be considered preliminary. > * * ache * * ; . ™« * “Mr. Mosk, you realize that if Mr. Konigsberg had answered the question that he refused to answer, an entirely new area of investigation might. be dpened . up, and this Committee. might be able to ascertain from Mr. Konigsberg that perhaps he is now and for many years past has been an active member of the Communist Party and from finding out who his associatés were in that entc“prise we might discover that he does advocate the overthrow . f this govern- ment by force and‘violence.. I am not saying that he would do that, but it is a possibility, and we don’t have to fake any witness’ testimony ‘as . precluding us from trying to discover if he is telling the truth. * * *” (Sept. Rec. pp. 42, 46-47.) > Nevertheless, petitioner refused to divulge whether he has been a member of the Communist Party at any time since 1951, or whether he is presently a member of such ' party [Sept. Rec. pp. 34-35.] In. each instance, the petitioner predicated his refusal to answer upon his rights . under the First Amendment and Article I, Section 1, of the California Constitution. [Sept. Rec. pp.. 34-35, lines 25-26, 1-2.] ; ws The full sweep of Mr. Konigsberg’s ideas regarding the permissible limits of an inquiry by those charged with examining the qualifications of applicants for admission to the Bar is revealed by his comments at thg, hearing. . “CHAIRMAN W HITMORE: How can we make a” determination with respect to the nature of your ac- tivities with the Communist Party if you were, assum- - ing you were, a member if we have no basis ‘for - questioning you concerning them? You won't an- swér our question as’to whether or not you were. ever a member. That question in that respect would be a preliminary queStion, woula it not? A. You have asked me it I advocate the over- throw’of the government, if.I committed any illegal — acts. I answered.gladly. I never have, I don’t now, ~ and I never will. I am incapable of doing it. Mr. O'DONNELL: Suppose we don’t believe you, . ‘don’t you think we are entitled to ask you as to your association with the Communist Party and your mem-y bership with the ‘Communist Party as part of our examination?’ A._ You are entitled to ask me only with®respec to’. phases. of illegal ‘activity. “You cannot ask me . or any citizen about his acttvities that’ dé legal, that -are protected under the First Amendment, under the part of normal civic activity..* * *” (Emphasis added. ) [Sept. Rec. pp. 41-42.]. Tn. other words, the substance of Mr. ‘Konigsberg’s position is: You may ask me if I have committed any crime in general or if I have committed a specific crime. ‘However, you may not make any inquiry regarding ac- tivity which is not per se illegal. If I do not admit to | criminal activity, or if you cannot prove such activity on t a: Ss x : ae my part, I am entitled to admission to the Bar. although _I have refused to reveal to you important areas of my background. _ The Committee made the following findings in its report to the Supreme Court of California: “(1).That the questions put to the, applicant by : ‘the Committee. concerning past or present member- ship or affiliation with the Gommunist Party are. material to a proper and complete investigation of his qualifications - for admission to practice law in € . the State of. California. : ° - (2) That the. refusal of applicant to answer said questions has obstructed a proper and complete in- : _ vestigation of .applicant’s qualifications for admission to practice law in the State of California. . (3) .That the refusal of applicant -to answer said questions has obstructed a necessary and proper func- tion of the Committee under Section 6046 and related sections of the Business & Professions Code of the State of C alifornia and under the Rules Regu-. lating Admission to Practice Law in California’ adopted pursuant to Section- 6047 and related sections of said Cade. ; : (4) That in view of the foregoing, the Committee: is unable to certify - that applicant. possesses the requisite qualifi¢ations or has fulfilled ‘the -require- ments for admission to practice law in the State of California.” The Seautue Court of California reviewed the entire record. adopted the findings of the Committee and _ re- lused to admit the petitioner to the practice’ of law. Konigsherg 2 v. State Bar (1959), ...... Cal, ‘2d . “¢b) Be of the age ot at least 21 years. “(¢) Be of good moral character. wis “(d) Have been a bona fide resident of this State jor at least three months. immediately prior to. the . date of his final bar’ examination. ¥§ Calif. Bus. & Prof. Code, §-6000.. * . No person who advocates the overthrow ‘of _ the Government’of the United States or of this’State by force, violence; or other unconstitutional. means, ‘Spall be certified:to the Supreme Court for admission and a license to practice law.” e Calif. Bus. & Prof. Code, § 6064.1. Under Coliioreia law, the California Seiates Court is entrusted with the’ ultimate determination of whether an applicant i is qualified for admission to the ‘Bar. ; In re Lavine (1935), 2 Cal. 2d 324, 327-328, 41 P. 2d 161, 162. : government. . roa (2) An applicant who obstructs .a proper inquiry into his qualificatiéns by refusing to answer material questions can and should. be denied adniission to the California Bar. sz? —15— (3 ) The isitiaied asked Mr. Konigsberg “were rele. vant, satutied and necessary to a proper dRermination of his qualitications. (4) Mr. Konigsberg blocked a proper inquiry into and determination of his qualifications by refusing to answer these ‘questions and therefore should not be admitted to the California Bar. In requesting certiorari petitioner “quotes a comment in the previous majority opinion of this Court indicating a view that a man of ‘ petitioner's ba. sground and char- acter should be admitted: to the Bar (Pet. Br. p. 12) dnd otherwise argues at length that he possesses traits which he feels would make him a desirable member ,of ‘tht Bar (Pet. Br. pp: 7, &, 20). . If we were dealing with the question whether petitioner should be admitted to practice law in the Federal Courts, thi line of argument would be proper; but this is not . the Quéstion before us. We-are dealing solely with his admission to practice before the courts | of the State of California, “We fully recognize that this area of state action is not, exempt from federal constitutional Kmita- tions. Nevertheless it is a vital area of state responsibility inte which this Court Should be especially reluctant and slow to enter.*There are—few principles on whieh this Court should be more undnimous than on refusing its jurisdiction to re- try Nee qualifications of an applicant : tor admission. toa State Bar.” Theard vw United States ee 354 ups 278, . 281. Pa : “> Ree Summers. (1945), 325, UF og S » a C. The Refusal of the Supreme Court of the State of California to Admit to the. Practice of Law an Applicant Who Prevénts Determination of His. . - Qualifications by Refusing to Disclose the Nature a: and Extent of His Association With ‘the Com- ' munist Party in the Present and Recent Past Does Not Present Any Substantial Federal Ques-. tion Not Previously Decided by This Court. . The decision of thé California Supreme C ourt. deter- © mines that an applicant will not be admitted to the Bar - of the State of California if he obstructs an inquiry into_his fitness by refusing to answer material questions, in this case, the questions relating to membership in the ' Communist Party from 1951 up to and’ including Sep- tember 21, 1957, the date of the Committee hearing: “Here it is the refusal to answer material questions which is the basis for denial of certification. Pett- tioner’s refusal to answer is coriceded. The issue is whether the questions are material. .We think their ‘materiality is. clear. The committee is enjoined against certifying for admission to practice any per- son who ‘advocates the overthrow of the Government . of the United States or of this’ State by force, vio- lence, or. other unconstitutional means.’ ( Busg& Prof. Code, 6064.1). This. provision clearly reqyires the committee to inquire as to such advocacy. The Cori- gress (68 Stat. 775; 50 U.S. C. A. $841) and the California I,egislature (Gov. Code, §1027.5) have declared that the Communist Party does advocate such ‘overthrow. It follows that inquiry as to mem-- bership in that. party is relevant and material in determining whether the proscribed advocacy exists. Petitioner refused to answer questions as to such _membership-at-perieds—af@ the-statitory-proserip-— ~~. tion and atter the legistative declarations of the pur-—— / . any Ee - pose of the Communist Party. As .we have noted, he persisted in his refusal after being’ warned, that such conduct would be deemed’ to require denial of his certifigation’ by the committee.” -. Konigsberg v. State Bar (1959), .. . Ca]. 2d ...., 5 A. . Ratpu E. Lewis, ' =e Ropggt D. Burcu, Of Counsel. = Pe . i, EXHIBIT “A”. © . L. A. No. 23266., | cee In the Supreme Court of the State of California. . Raphael Konigsbe ‘rg, Petitioner, vs. State Bar of. Cali- fornia-angd the Committee of Bar Examiners.of the State Bar of California, Respondents. = Report of the’Committee of Bar Exanmiiners. To the Honorable Phil S. Gibson, Chief Justice, and to the Honorable Associate Justices of the. Supreme: Court - of the State of California: a) On July.4d0, 1957, the following order was -made in "the above entitled matter: “Pursuant to mandate of ‘the Supreme Court of the United States, it is ordered that ‘the decision of” this Court, filed April 20, 1935, be vacated, and the’ matter of admitting Raphaet Konigsberg to the prac- tice of law in all the courts of this State is-referred to ‘the Committegof Bar. Examiners for further pro- ceedings. te any, “CARTER, J. is of the apinion that the application . > of -Raphael Konigsberg for admission to practice «8 in all of the courts at this State should nov be granted. (S$) Girson, Chiet Justice.” II. Pursuant to this order, the following ‘action was taken by the-¢ Committee of Bat Examiners. in the matter ‘of the application of Raphael Konigsherg for admission to— practice law in the State of California: (1) The Committee carefully considered the opinion of the Supreme Court. of the United States in the matter xs ~~, - ’ oe & entitled * ‘Raphael Konigsberg, Petitioner, vs. State Bar - f California and Committee of Bar Examiners of the ¢ State Bar of California”, decided May 6, 1957,.353 U.S. panes » 3 LL. Ee ad 8, 77'S. CY : ile (2) On September 21, 1957, at a meeting of the Com-. mittee in Los Angeles, at which all of the members of the Committee were present, the applicant appeared with his attorney, Edward’ Mosk, Esq. At this meeting the applicant’s petition for admission was further heard by the Committee. An argument by the attorney for ‘the _ applicant in support of the application for admissien was -also heard. The applicant was sworn and testified at ‘the hearing. A witness produced by the applicant was sworn and testified. Written evidence was offered hy the applicant, and was received by the Committee. The written record of all previous ,hearings by the Cognmittee and one of its subcommittees on the application'of Raphael - Konigsberg for adnission ,was incorporated as part. of the record of the further hearing, by the stipulatidn of the applicant and by the Committee. (3) The application was then submitted hy the appli- cant and by his attorney. i At the hearing on September 21, 1957, the’ Committee ddvised the applicant and his attorney that the refusal of applicant to answer material questions put to him by the Committee would obstruct .the investigation by the Com- mittee of applicant’s qualifications for admission to prac-— tice law, with the result that the Committee .would - not be able to certify him for admission. . am . IV. At the hearing on September 21, 1957, applicant re- - fused to answer any questions put to him by the Com- “mittee jconcerning his past os present membership in or ation with the Communist Party. a 4 : ; ‘ . V. { After, further consideration of the entire record before it, the Committee finds and concludes: (1) That the questions put to the applicant by the Com- mittee concerning past or present membership in or .af- filiation with the Communist Party dre material to a proper and complete investigation of his qualifications for admission to practice law ‘in the State of, California. * 42) That the refusal Of-applicant to-answer said ques- tions has obstructed a proper and: complete investigation of applicant's qualifications for admission to practice law in the ‘State of California. , , (3) That the refusal of applicant to answet said ques- .. tions-has obstructed a necessary and proper fiction if the Comn\ittee under Section, 6046 and related sections at the Business & Professions Code of the State of California and under the Rules Regulating. Admission to Practice Law. in California adopted pursuant to Section M47 and related sections of said Code. (4) That in view of - the foregoing, the. Committee is unable to certify that ce possesses the requisite inalifications’ or has fulfilled: the requirements for ad Mission te practice law in the State of California. ** ° = . ‘ al . . In Witness Whereof, the Committee of Bar Examiners of the Sti ute Bag of California -respectfully submits this report of its * proceedings on the reference made ‘to it: a ; by the Supreme Court of the State of California on July 10, 1937, together with the transcript of the hearing be- fore the Committee on September 21, 1957, and the ex- hibits submitted by the applicant at that hearing. ot Dated: November 9, 1957. SHARP WHITMORE, | Vincent H. O'Downe it, GrorcE HarNaceL, Jr. ‘ Forrest E. MACOMBER, e 3 GERALD P. MarrtIN, Tuomas H. Mc Govern, * Joun B:. Sure, _ The Committee of Bar Examiners + . “of the State Bar of California, By Suarp Wurrnore, Chairman. ao | of the State of California: ev oe EXHIBIT “B”. ; L. A. ‘No.’ 24339. In the Supreme Court of the State of California. Harriett Buhai, Petitioner vs. State Bar of California and the Committee of Bar Examiners of the State Bar of rcccuboie: Respondents. ' Report of the Committee of Bar Examiners. To the Honorable Phil S. Gibson, Chief Justice, and to. the Honorable Associate Justices of thé pupreme Court | 2 I, On Augtist 13, 1957, the followi ing onder was made in the above entitled. matter “The abov e-tntitled matter is referred to the re . of Bar ‘Examiners for further proceedings. | ™ | (S) Gipson, Chief Justice.” woos EF, ‘° IT. Pursuant to this order, the following action was taken by the Committee of Bar Examiners in the matter gf the - application of Harriett Buhai for admission to practice law in the State of California: (1) On September 21, 1957, at-a ineeting of the Com- , mittee in Los Angeles, at which dll of the members of the stave were present, the applicant appeared with her counsel, Stanley Fleishman, Esq., Clore Warne, Esq., and Harvey Grossman, Esq. At this meeting the ap- flicant’s petition for admission was again heard by-‘the., Committee. \n argument by counsel for the applicant in support of the’application for admission was also heard. The applicant was sworn and testifigd at the hearing. Two witnesses produced by the applicant were. sworn and lestified. The written record of ali previous hearings by the Committee and one.of its subcommittees on the appli- 8 S ee - ~~ cation of Harriett Buhai for, admission was incorporated as part of the record of the further hearing, by the stip- \ » __ ulation of the applicant and by the Committee, 4, ~ ,€2) The application was then submitted by the ap- . a plicant and by* her counsel. ‘ i, a oe Ill. b. At the hearing .on September ‘21, 1957, the Committee _ advised the applicant. that her refusal to answer material “questions put to her by -the Committee would obstruct the investigation by the, Committee of applicant's quali- ficatiorisfor admission to practice law, and‘the Committee « would not Devable to certify her for admission. ~, on : -"At the hearing steric 21, 1957, applicant an--" and questions concerning™the cifcumstances . of her _.termination of membership in and” ‘disassociation from- the Communist Party ‘and the names of. certain persons’ to whom shé-had communicated “such termination and "disassociation, the: applicant at previous hearings having refused to divulge any of such names. . seh V. On the basis of the additicinal testimony ‘at the hearing . _ on September 21,+1937, a further investigation was con- , duced by the Committee of Bar, Examiners. This further investigation disclosed no’ facts inconsistent with the testi- *mony of the applicant. ; Bick | aie | Vi, ' On. the basis of the additional testimony given by the _applicant at thé hearing on September 21, 1957, at on ‘the basis of the further investigation thereafter conducted ‘by the Committee, the Committee at a'meeting held on. October 6, 1957, found that applicant’ possessed the requisite “qualifications and had: fulfilled the requirements for admisst6n to practice law in the State of California oe, and voted to certify applicant to the Supreme Court of the State ‘of California for such admission: VU. * On October 18, 1937, George Harnagel, Jr. Esq.. a member of the Committee of Bar E xaminers and acting for the Committee, certified to the Supreme Court.-that sion to practice law in the State of ¢ ‘alitornia, arid moved that, she be admitted at .an attorney at law in all the courts of thé State of,.California. . eet Peer ee admit Harriett. Buhai-to the practice. of law in this. State. . and directed that a report be filed By the’ Committee of Bart Examiners with the Court. of the State Bar, of Calitornia. respectfully submits this report of its proceedings on the .reference made to it by the Supreme Court of the State of California on August . 13, 1957, together With ‘the transcript of the héaring before thg Commitiee on September 21, 1957, Dated: November 9, 1957. : = * SHARP ‘WHITMORE, : Vincent H. O'Donne t, et GEorRGE HArNacEL, Jr. ~ Forrest F, Macomper, GeraLp P. “Martin, Tuomas H. Mc. Govery; | Joun B. Surr, 4 . The Committec.of Bar Examiners “dies : of the State Bar of: California, ° - By Suarp Wuirnorr, : © Chairman. te Harriett Buhai had fulfilled the requirements for admis- The Supreme Court deferred action on the motion to In Witness W heneat: the Committee of Bar E -Xaminers e SUBIECT INDEX , ' PAGE I. Prior opinions : : : a, we ; im ¢ . - ¢ : II. Jurisdiction 2000... . Saitlasddes 2 ‘. ITT. | : Constitutional provisions and statutes involved... 2 ., ; m2 .. = Cntestions presented , V. Factual background ...”.. ok & VI. ; “Summary of argument ES . 17 VIT., ; Argument ................. a 1? \ Petitioner has complied with all statutory rojuirements for admission’to Bar i Sa a, 19 ’ e° 1. The prior record shows petitioner's compliance: with California statutory requirements ty 2. Petitioner's good moral character remain are distinguishable OER ee VILL. ( enecluston f 31 ut, TABLE OF AUTHORITIES CITED’ Cases F we PAGE. Allgever vo Lonumiana. 1s 07. S0 378 : wae 42 A . i) . * Barenblatt vo United sStmres, 360 U.S) 128 - 50 Beilan v. Board of Public Education,’ 387 U.S, 468 44: 47, 49, Se Coley. Young, 351 U.S. 536. 76 s Cr 86] Har Sahar 6 i fanmings v. Missouri, 4 «Wally U.S. 277: j . - 42 4h | . “ Garland, In re, 219 Cal. 663, 28 RL 2d 354.000 ete Hovey, In re, 7 Cal. Unrep, 203, 81 Pac. 1049. idan! ae s e Kenigsberg \ “State Har, 353 U..S. 252...1, 3. G,. SF 3t, 32, sai ie a SPI UR ear ACRE _ 34, 35, 40 22. 47, Letter v. Casey, 387 US. 68. 4, Mayer v. Nebraska, 262 U. 5/390 Peters ve Hobby, 349 US. 331, 78S Ct. 700 Schware vo Board of Bar Examiners of Staté of New Mexico, S53 U.S. 232..-.s.eeciecn Reber moet. : F Service y. Dulles, 334-€ S303, 77.8 Cr N82 > " Stachower t. Board of Highep bducation, 330 Us. 331. 45 Smuth ; bexas, 233 U S. 630....... os ES OE Spear'v. State Bar of California, 211 Cal’ 183, 204 Pace 697% 40 Spenser vo Randall, 387 US. £13 ere Mr a on 20 fakahashi . Fish Commission, 334 UL Ss. 416 ee. 42 homas v. Colfins. 325 ci. >. Shr w.. > 4° ‘Tritax v. Raich, 239 U.S. 33.00... , re) United States v. Lovett, 328 4 303. 6 S. Ct. 1073 3s Wells, In re, 174 Cal. $67, 163 Pac. , ’ 4H) Wien anv. Updeg raf, 344. U. a | Sewanee BSA Phos ed oe Nick Wo v. .. Hopkins, 11s U.S. Se eae — ee iv. ‘RULES - , PAGE So California Rules of ‘State Bar, Sec. 6.00000... cccececeeeccce eee — California Rules of State Bar, Rule 10.2000... .00000000.... iw ; “7. STATUTES ae ek. \ ~ : z California Assembly Bill 1800. 2c eeeesneedeeeeeeeens 3G ‘Cahfornia Business and Professions Code, Sec. 6060.00.00... econ Tie Se SEs ee Sk California Business and Protessions Goede. Sec. 6064.1 oO > peadired oF vida tert ECD SAT LEER » IE Sea Eber 3, 9, 19, 23, 25, 38 - : California Senate Bill 298)... 1S RRR, anes aa 38 alifornia Sehate Bill 1666... As 38 United States Constitution, First’ Amendment... acedoctiaame Se United States, Constitution,’ Fourteenth Amendment... ao & | TexTseok e ? 7 - ’ - 43 i : 20 Lawfely Guild Review (1960), pp. 41, 49, "Bmerson, of Yale’ University Law Schgol, in the contempt trial of Ed- Ne NE i taten co ekiman i ee ee ¢ - gee ee ee a ~ - Le & 7 aaee IN THE | a : Supreme Court of the United States October Term, 1960 . . “No. 28 Raruasi K Sco: . eo a , | Petitioner, v's. STATE .BAR OF CALIFORNIA AND THE COMMITTEE OF BAR EXAMINERS OF THE STATE OF CALIFORNIA, PETITIONER'S OPENING BRIEF. . : I ° ¢ . Prior Opinions. — The controlling court: opinion in this proceeding is the opinion and judge nt of this court in Kontasberg v. State Bar;-353 U. S. 252. (1957).- The only written opinion below is the decision of the Supreme Court of the State of California in L.A. 23266. on October 16, 1959. The majority opinies by the Court. in bank ig found as Exhibit “C@” attached to the Petition for a Writ of Certiorari filed by the pétitioner herein .and is also found en page 52 of the transcript t record) The decision is reported In the official re- ports as 52 Cal. 2d 769, The dissenting opinion of Mr. Justice*Traynor, as Acting Presiding Judge is found on page 12 of the. Appendix to the Petition for Writ of so @ ; ; j - ie ’ : ~(ee. a. e oe. , | ; ° : Pn (c) Bé of good moral character. * ‘ ‘ b. Section OO64.1, One Advocating the Overthrow i Government Not -To Be Adm'tted: : . “No person w ‘ho advocates the « zona ww of the é . government of the U nited States or this State by force, vialence or other ‘unconStitutional means shall be certified to the Stipreme Court” for admission and a license ‘o practice law.” | 8S a -* 3. Rules regulating adnussion| to practice law in California adopted pursuant to the provisions of the F Niate Bar Act (Ch. IV, Div. 3 df the Business and Pro- fessions Code) as approved by the Board of Governors . ‘ ° . : Ple-5 Ps xf applying to the present case are: { b . California, ¢ September &, 1037. as 2 a. “Section 6; In the conduct «of. investigations and upon the hearing of all matters, the committee. or any subcomittec, having jurisdiction may: (1) T ake herei Myrelevant evidence ; (2)/Administer oaths and affirmations: (3) Compel, by subpoena, the attendance of wit- esses and production of relevant books, papers and documents.” { | We Rule 10: Moral Character. “Section 101.) Every applicant shall be Of good nioral chaPacter: Investigati ms inyeterence to the moral character of applic ants may be-intormal, but. ‘shall be. thorough, with the object of ascertaining the truth. _ Neither the hearsay rule, nor anf other technical vale of evidence, need be obse Fved: but an applicant shall be advised of any and all infosma- tion received by the c mimittee adversely bearing on his moral character upon w hich a denial of récom- mendation by the cAmmittee is based, and ‘he. shall be given a reasonable, dppertunity to” rebut or ex- plain the same. The applicant, shall have the op- portunity of proving that he iS. poss ‘ssed. of good moral character, of removing any And-all reason- able suspicion of moral unfitness, and that he is entitled to the. high regard and confidence of the public.” ‘ “ eelicen , - IV. i - Questions Presented. The sjtiestions as presented in the Petiti noterta Wri of Certiorari are the tollowing : 1.) Whether the judyment of the court be |. AY. Up hol 1- ‘ing the action of the State Bar Coninittee of Bar Ex- aminers, felusing te ¢ertify petitioner te the court for admission to practice law in (¢ ‘alifornia and denying pe- titioner’s applicati on tor admission’ te the bar of Call. fornia, -is inconsistent with ° this court’s opinion, find- ings. judgment and\mandate in Koutysherg v7 State of California, 353 U.S. 252 (1937), with the resultant Aenrivation of petitiorien’s liberty and preperty without due process of law and the dénial’to him of the equal Prutect*hh of the daws in vielation of the due process and equal-protection provisions of the Fi nyrteenth -Amend ment ta the United States Constitution. 2. ‘Where this court has held that the petitioner ste- eesstully met all state reqgrements. and. that a dental of petitioner's application for admission to the bar-waitld Ie a deprivation of petitioner's libertysand property with- out due process of law, is it not an ities and capri- cious act and an abridgement of petitioner's rieht te “| ursue his ‘chosen profe ssien and right t the eXETCISE ’ ot freedom of speech, press and assembly contrary te he due provess-provisions of the Fourteenth Amendment he Coerce petitioner iné&ubsequent state proceedings on remand to reveal his political affifiations as a new ly contrived condition to admissiem te the bar where in the said subsequent proceedings the State Bar Commit- tee ot Bar Examiners comes forward with no affirma tive/or further proot ot pentioner’s disqualiticat ie mh te a a oe) ni ie ~~ = a warrant. or jistity the aforesaid limitation upon peti- tioner’s rights under the Constitution ? 3. Where the record before this court in Konigs@y d ar State of California, 353 U.S. 252 (1957), conelu- sively established that petitioner was. of good moral character and did not advocate the forceful éverthrow of Government and that petitioner had fulfilled all re- quirements affecting the right to pursue his chosen pro- fession, andgwhen on-remand the record in subsequegt proceedings and ‘brought up to date shows the same good . moral character and loyalty, is it not arbitrary and ca- pricious ‘and a deprivation of petitioner's liberty without dug process of law and denial to him of the equal pro- tection of the laws in violation of ‘the applicable provi- SI ins'of the Fourteenth Aniendment to refuse to certify petitioner for admission to practice law and deny: his ap Reasion for admissiort to the bar solely because of ‘titioner’s refusal to reveal his" political affiliations ? 4... Where the entire record demonstrates that peti- tioner has declined ty reveal his political affiliations solely upon grounds of long held principle: and private . conscience, is it not a deprivation of petitioner’ § frec- ‘dom of speech, jireds, assembly and conscience, contrary to the" due process inhibitions of the Fourteenth Amend- ment, to deny petitioner admission to the bar sdlely be-, cause of petitioner's conscientious refusal. to reveal his. political affiliations ? 5. Where the entire record-reveals that petitioner has met the ordinary, requirements for adyilssion to the Bar. . a ’ / 5 aid has overwhelmingly csiablished his loyi alty and good * moral character, is it not irbitrary, unreasonable and capricious and a deprivation of petitioner's liberty and property without duc procgss of law to deny petitioner -admission to the bar sole ‘ly because ol his refusal to re- veal his: political affiliations in. the light of the state and n ational interest in a free and independent bar and thé treé exercise of speech, press, assembly and private con- science ? a 6. Where the petitioner has mgt: all Statutory re-- quirements for admission to the Bar and has complied ithe aga and formally promulgated’ rules of the — ¢ Committee of Bar E xaminers as prérequisitgs to ad- mission to the Bar and ha’s met every standard estab- ‘* Lista by judicial decision in the Staté of California relating, to’ admission to the Bar, it is not a* denial of pettioner’s liberty: and property without due process of 7 law and a detiial of equal protection of the Jaws’ for the . petitioner to be denied admission to the. Bar ‘nt the ‘basis of a “rule” requiring that he answer questions relating to his political affiliations where: that “rule” requiring: that he answer questions relating to,“his political tf filfations W here _ that. “rule” is fitst an- nounced and tatk red to his spectiic situ ition at a hear- ing held. seven years after he commenced the study 1 Poe law and subseque nt to the mand: ute, decision and opinion of the Supreme Court of the United States-on the facts ’ ot his case? Factual Background. } : - ° o ” » exactly \ten| years’ ago in the year 1950) Raphache= Konigsberg commenced the: study of law aiter many years , of employment as a social, worker including at Petey its Director of -Social services of the City t Hope Sanitarium, in, Duarte, California [1956 Ree. pp. 3-6]? and as a District Director of the State Ad- ministration of the State of California, (1956 Ree. p. 6}. Konigsberg also had served with great distinction in. the Armed Forces: of the United States from Oetober 1942 to October 1946 Ztd achie ved the rank of Cap | tain serving as Orientation Officer for the United" States 7th Army in Germany, supervising that program for over four hundred thousand troups. [1956 Rec. pp. 6- and 15.] In 1953, at the ave of 42 Konigsberg completed all on the legal requirements established undér the laws of the State of California as qualifications for be- coming a member of the Bar of thé State of Calli- fornia.* Rs > Te : 2 . In the year of 1953 ‘and in early 1954 a series of hearings was held before the Committee of Bar Ex- aminers ostensibly directed towards determining whether petitioner. was of good moral character. and whether he — — ——— *Since the record in this case is composes! of two separate - transcripts, the trans¢ript of the record of the hearing which was hefore this Court in 1954 will be referred to herein as. [1956 R. p | and the yfanscript Of the record before the Committee of Per Examiners commencing in 1957 and before this Court ws the transcript of the record for the October Term 1960 will he referred to hereinafter as (1960 R. p. ......]. *Bifsiness and Professions Code, Section GO. | \ advocated the averthrow of the government aby. fore: aand vielence Or other unconstitutional -means. At the conclusion Of these hearimgs the. Crmmnittee Bar Examiners. determined that petitioner’ Konigs- lerg had not sustained the burden of: proof (1) ‘that he was possessed of the good. moral character re- quired by Sec. OHOO0(C wort the StategBar “Act or (2) that you have complied with the provisions of See. ODO4. FE of said act. [1956 Rec. p. 344.] The Supreme Court of California after petition by Konigsherg refused to review the decjsion hye ‘then ‘oan- mittee although three members of the court. (Cref Justice Gibson and Justices Traynor and*Carter) voted for a hearing. Konigsherg then petitioned te? this court for a Writrof Certiorari. Certiorari was grarited and this. Court rendered its decision on Mty 6, 1957 reversing . and remanding the mi itter for further pro- ceedings not inconsistent with the 5 ; On remand to the Supreme Court of California pe- titioner filed on June 26, 1937 an application for ad! mission to the practice Of law based upon the opinion this Court in Konigshery 7. State Bar, 353 Ul s 59 {1960 Reé. p. bk] * The Supreme Court of California thereafter vaccter! its prior ordeg and oreferred the matter te the Owm- mittee of Bar Examiners for further. proceedings. Tus tice Carter reeorded that he w as of the epantorn that “the application of Raphael’ Rontesbesg for admis ty practice Iw in all of, the courts of this State shot how be granted”. [1900 Rec. pp. 2-3.] . J = ° On September 21, 1937 the Committee of Bar Ex aminers' then conducted a further hearing a a a quarter of a million dollars in it. . & es | Pa ° 19 At this hearing counsel for petitioner “requested .the ‘Committee of Bar Examiners to immediately recom mene favorably to-the Supreme Court. of Calitornia the, appircagion for admission of Konigsberg and urged that it would be y denial of due process to’ proceed with any further proceedings other than to recommend ‘admission. The Committee denied the* motion. | 180 Ret. p. 10.] Petitioner then called on his. behalf as a further Witness to establish the continuing nature of his good moral character Herbert D. Tobin. [1960 Rec. pp. ll-. 14) | Robin testified that Konigsberg had been em-- — ployed as office manager in connection with his tract building operations for a period of two and-one halt years. He. testified .that “I think he is probably the most honest both innellectually as well as legally the most honest man IT hive ever met... .-. His ethics and his attitudes, his sincerity, his loyalty, is beyond all re- proach . . ..he has Tull power to sign checks on our general account, which ‘at times may =“ as much as [1960 Ree. p. 13.] In response to the gquestion “Have -you observed in the course of the two and a half years any indication on the part of Mr. Konigsberg of a belief, of the, over- throw of the government by force and violence 2”) Mr. Tobin responded, “’No, that is completely” childish.” {1960 Rec. p: 14.] The Committee ot Bar Examiners was afforded an “opportunity to cross-examine Mr. Tobin but) declined to ask any questions. [1960 Rec. p. “14.] Thereafter the Committee proceeded to question Kon- igsberg personally and the questions did not‘faise nor . ~ Nao 75: . . did the cominittee inquire about any single derogatory fact in the lite or activities of Konigsberg since the prior precedings or any other time during his life. The. Committee then asked whether Konigsberg had every been 2 member of or affiliated with any organiza- tion the purpose of which at the time of your member- ship or affiliation is. or was, to advocate the over- throw of thé constitutional form of government. . . f [1960 Rec, p. 1OF and whether he “had been a member of the Communist. Party at any time since 1951" [1960 Ree. p..23.] creo Konigsberg responded in part. that “The question, of course, is similar to the ques- tion asked me four years ago, though phrased somewhat differently, and while T think we. all change somewhat in four years even at this age in * our: thinking, the baste principles that I established in that, case and in these hearings that “questions regarding one’s political thinking are protected by the First Amendment.and have no bearing what- _ soever on one’s moral character, have, i think, pretty well been determined by the Supreme Court Opinion in. my case and certainly having the Su- preme Court vindicate my ‘opinion and principles which are now in effect, and in a sense the law of the land because of the Supreme Court Opini ond I cout hardly be expected at this peint for ex- pediency to give up. principles that have been up- held by the Aighest court of our country. 2. {1960 Ree, Pp. 19-20. | P “Now if vou were asking. me.whether [, as a person ever ‘belonged to an organization that ad- ae. X * * | / mn YW : vocated the overthrow of the government by force or violenee, according to thy knowledge, or whether I jars mally ever advocated this or ever did rae, thing such as throwing a bomb or writ a leat- let ‘or speaking of advocating «the ‘dete of the government by - force and viskence or even whether I ever attended a.meeting at which force - and violence was proposed as a course of action. — .. the answer is no. I- personally have never been a member of gn organization whieh t my know!l- edge engaged. in such advocacy. I never. coulde be or would be. I never did a thing in that direction. I made clear in. the prior hearings but if you are asking me whethér [ as a citizen hav € in the course of normal, civic or political duty describe it as ‘you will, because I think the record does make clear ‘that I have a‘strong civic conscience, if what you mean by your questions did Axnever join with ‘people who were known to. be members ‘of the -Communist Party, iff that .were the case or if whether, I personally joined the Communist Party - *, as:alegal pe litical organizatic m-in.this State, which | the Supreme Court. in my opinion, makes clear it was at the time, then I refuse to answer that phase ‘ of the question, because this is an area protected by the First- Amendment ‘trom ages past, and cer- tainly reaffirmed in recent decisions, including my own.” [1960 Ree: pp. 20-21.) Petitioner further’ stated: . “oT tha#k the record makes very Clear what- ever you may think of those principles that | -have tried to live a principles! lite, and that being eae the case you -can_ hardly ‘ask me .as/ Zamatter of conscience or a matter of principle. to give up various principles. This would bé committing on my part an immoral act. | doubt very much if, the . Committee intends to take the position that to prove his good moral character an applicant must commit avhat to him is -an immoral act. [19600 ~ Rec. p. 21.] - : 77 Tu I think [T will only reaffigm to my knowledge, I hav. never been a member-of such an organiza- tion ar group, a part of an organization, or how- ever you want to’ phrase it it.. [ think» thts word» clarify the ‘matter.. May "Roury that I think you, _ are rightly concerned with matters of advocacy of vy the overthrow of the government, but it seems to. me that you had the opportunity in the previous ‘hearings, ‘and you have-it now-if you have evi- dence of any illegal. acts on. miy part then cthey should be brought. f ward and give me a chance to answer then}, and TI will be happy to answer them, not proceed. on the basis of mere suspicions. If you have aéts or. evidence of any acts, Task you now to bring then forward. so T can answer * them.” [1960 ‘Rec. p. 22.] The Committee Chairman then; informied Konigs- berg that the Committee had to funections—to “in-. vestigate” and to “determine and estated that they were engaged in the function. of investigating matters “ which’ we are charge’! with the responsibility of de- termining under the law of the State of California.” He, stated in part that — | “Tf we, Mr. Konigsberg, at this point had ,some- one who would testify. that such.and such was. not. F ae N the case with hestiect to an janswer that you have given, we would Teel it enct nbent upon: Us, at this time’ or at ‘another hearing| to bring that persen _ before ‘vou and jhave. testimohy introduced into the ‘® if record in order that: you would have the right ti cross-examiniation through your counsel,” [1960 , ‘Rec. Dp. 23.| Pea Ee ea ae The Connhiliter then proceeded to inquire regarding specific activities of petitioner and all these questions were answered «lirectly and: unequivocally by Hyonigs- berg. °[ 1960 Rec. pp. 24-26] ite At a later point in the hearing [1960 Rec. p. 32 Ir. ‘McGovern speaking: for the Committee suggested that, petitioner had taken the position that the ‘Committee could only inquire as to w hether he believed in forcible overthrow of the government. ieenad sesponded ‘ili part to this .-. Do yor have any evidence of illegal acts? “Bring them out, but you haven't done that. ven It isn’t enough for an American -to avceptethe vari- ous privileges th; at that citizenship. grants to them there are certain deep responsibilities. that go ‘with those privileges, and unfortunately most of us don’t -know them, don’t accept them, -and are hot taught them. I was, and [ have fried” to follow it - among the duties of a citizen’ to compensate for. the great, _advantages he yets, it seems to me is to, of course, protect your country when» in flanger, whether. war: or other, to try to live as you might say a seven day practicing ‘believer in _demperacy, not just on some days, and finally to defend’ the .Constitution by ‘Telusing to join i in ary acts which , oa £ —15-— in anyesense weaken ‘tor compromise it. “1 feel if, you persist in ashi ng questions ao go into | the areas which are protected by the: Constitution, that isachdit vou are doing you‘are compromising constitutional principlesy I cannot be a party-‘to it . ° ‘ matter what the ptic€”” [1960 Rec. p ‘In. view of petitioners compliance with all statutory requirements, it is a denial of due process-of law for the respondent to continue to deny petitioner admission to the Bar. , - 8 = Petitioner continues to take the same. principled posi- tion taken before the first decision of this court in’ this matter. To require petitioner to‘answer the questions (asked under.all of the background circumstances of this ease would be to force him te commit an immoral act #nd this disqualify himself fr. m admission to the Bar. Matters occurring at.tHe first hearings and prior. to the opin- ion pf the Court in that case are not repeated here because all of _ ‘Pissues were heretofore disposed of by this court. A. summary ° / these. facts however is to be found on pages &-IS ot the Pen toner’s Opening Brief in the proceetlings before this Court in the October Term of 1956 and ini the Transcript of the Proceed~ . mgs in that matter which is befdre this Court by reason of the Court Order dated March 7, 1960 [1980 R. p. 72). ° : ; Qo ° : here is no law Oi the ‘State Of: California, no prior ‘decision of the Supreme Court of California, nor did the Committee of Bar E Naminers ever pass a Rule per- mitting the Committee to deny petitioner admission to: the Bar solely because he fatied to answer specific ques- .tions regarding his political affiliations or. a The “rule” in this case was one’ brought into peing solely. at the hearing for petitioner. -’Elemental Fairness” re- ~quired by due process of law would prohibit the enforce- ‘ment of such a “rule” against this petitioner after the . Supreme Court has already passed on the facts of this case, | a Where the ‘Respondent has applied one rule. as tise basis for denying petitioner admission .to ‘the bar and the court has found that this bakis was ot proper’ ‘un- - der. the constitution, the respondent cannot thereafter commence the same litigation again based upon an en- tirely new theory without denyi ing petitioner his con- stitutional rights. The questions dsked of petitioner by the Committee were all questions falling within the protection of the First Amendment ot the Constitution. The balance of rights between the individual and the state must be weighed ‘heavier on the side of the individual where there the questions | are designed to curtail the independ- ence of the bar. ; - It is not proper to equate the responsibilities of .an employee to his employer with the obligation of an ap- plicant for entrance into the independent profession of the bar. To restrict, membership in the Bar by rea- ~ son of the refusal of an applicant to discuss fits political affiliations and associations would be a Serious encroach- — me nt of the freedom and independence of the bar whtet is so vital to the preservation of our democracy. ef) _ Argument. A. Petitioner Has Complied With All Statutory ° Requirements for Admission to Bar. lk. The Prior Record Shows Petitioner's. Compliance . _ With California Statutory Requirements. The Statutes of the State Of California relating to © the requirements for adniission to the practice of law are found exclusively in the Business and Professions Code of the State.* Exceyit as these statutes have been interpreted by. the Supreme Court of. the Statezof California’ and by such rules as have been formally promulgated by the Committee of Bar «-Examiners.” These are the sole legal requirements and the only basis . for determining who is’ to be admitted to the practice of law: fn the State of. California These requirements insofar» as they apply to the facts of- this case are only two:. 1. That an applicant’ who has qualified from the point of view, of education" and age must be a person of good moral character ‘and . 2. Under the provisions of Sec. 6064.1 must not. be. a person who advocates the overthrow of _ the government by force, violence or other nhcon- _Stitutional means. Oy: 7) 5 “See Business and Professions Code,-60 and 6064.1. There are no prior written decisions of the Supreme Court ” denying an applicant admission to the Bar by reason of appli- . cants political associations or beliefs. "The petitioner has set forth on pages 2-5 the basic rules “hick apply to this case. "About which there is no dispute in this proceeding. ’ ’ ® . ‘3 ——20-— When this proceeding was before the Supreme Court in the 1956 Term the Committee of Bar Exantiners ~ Staredt thatthe petitioner Kongsberg: had failed to nicet his burden of proof that he was 6f good moral character sand did not believe in ‘the overthrow: of the .govern- ment by force and violence.” At that time petitioner argued that he had met his burden of proof in both’ instances although: he argued - that under the law the burden of proof on the issue of — force and violence did not fall upon him but must be affirmatively proved by the Committee of ‘Bar. Ex- aminers. (Speiser v. Randall, 357 U.S. 513 (1958).). . This Court found that: _ “After examination ‘of the record, we are com- pelled to agree with Konigsberg that’ the evidence .dloes not rationally support. the only two grounds upon which the Committee relied in rejecting his , application for admission to the California Bar.” and i 2 # shat : “On the record before ug it is our judgment that the inferences of bad moral character which the Committee attempted to draw from Konigs- berg’s refusal to answer questions about his po- litical affiliations and opinions are unwarranted.” | mar | a | | “In this case we are compelled to conclude that there is no evidence in the record which ration- ally justifies the finding that Konigsberg failed Ti establish his good moral character . . . without some authentic, reliable gyidence ofS unlawful or 12See 1956 Record, page 131. —— . amoral actions Feflecting adversely upon him, it is difficult to comprehend why the State Bar Com- a ——tittee Tejected a man of Korligberg’s background ¢ and character as morally unfit to practice law.” . " (353 U. S. 252, 262, 270-271, 273.) These findings clearly indicafed that Konigsberg . had met his burden: of proof and had established his -__ good moral character, and that it was a denial of due process to thereafter deny him admission to the practice of law. ‘Wherein is the posture of the present record any dif- ferent than the record before the Court in thé Oc- tober 1956 Term of the Court? 2. Petitioner's Good Moral Character Remains: Unchallenged. Since the 1957 decision the Committee of Bar Ex- aminers has by its own admission employed an_ in- vestigator to find. any ‘available evidence adverse to pe- ‘ « titioner."* The Chairman of the Committee conceded — - that no such evidence was considered making its de-. termination and that if it obtained any such evidence — it would give the petitioner an opportunity: to rebut. The record clearly iftdicates that no such evidence exists. Under these circumstances the .moral character of the petitioner remains in the same status as at. the ~time,of the previous decision and opinion of this Court when it was stated that petitioner had met his burden: Of proof. . vs a ° 81960 Record, pages 38-39. ates | In addition, however, petitioner has on his own fr itiative brought that record of good. moral characters1p to date and has shown by letters from lawyers, doctors, certiftéd public accountants and other persons of public stature that he continues to be a person of good moral character."* One witness was brought before the Com- mittee to testify personally that_he had \d_ known pe= ~__titioner-intimatcty for two and-a-hatf ye: years as his em- ployer and had_ placed in petitioner great trust and re- sponsibility and that he considered petitioner. to be a person of the highest moral character. and integrity.” ’ The Committee of Bar Examiners had. full oppor- | tunity to question. each and every jerson who wrote letters on behalf of ‘the petitioner r’’. but even if fhis appeared to be too much effort for the Committee, the members had the opportunity to ‘question the one witness whe was brought before the Committee by the petitioner. Yet not one question was asked in cross- examination nor was any effort made. to challenge in. 4 — “See 1960 Record, pages 39-50. 81960 Record, pages H-14. 7 . '8J¢ should be remembered that at the first hearing petitioner introduced, letters, bares 35 persons. Respondent minimized the ‘importance of t tters in its briefs but -it is clear that’ with * all af these leads available ‘to it, the Committee and its inivesti- a failed to find any information derogatory to the petitioner. * This fact alone makes the argument of “Frustration of, ‘its in-' + vestigation” appear shallow and contrived. ‘ ¥ . Side a° character moral character is conclusively established and he has complied—swith this requnremest for admission to the® * ; Bar of the State of Califonial ~ ae by; Force and Violence. *s / The second requirement. i is that petitioner | not be a serson who bélieves in the sverthrow. ot the govern- as means. | - : + Petitioner has responded to the questions of the Com- mittee on'this issue™ and has indicated ‘his prof und dis- agreement avith any doctrine or advocacy of overthrow of the government by force and viglence or other un- constitutional, means. ‘Petitioner has stated that any doctrine of force. or violence is, inimical to ‘his char- ; a . . “This despite the fact that in “1956 the respondent éavalierly dismissed the letters submitted by- petitioner at the’ first hearing by saying that-,“moreover the doubts with respect to petitioner arose primarily in specific areas such as those relating. to the . communist patty and the failure of any of the letters to- indicate an awareness of these areas of doubt materially lessened their his that respondent's sole concern was to force petitioner, to sub- servience rather than to pursue the true facts. ; "It has been’ pointed out both before the Court at the 1956 term and in the,current petition for Writ of ,Certiorari that .the constitutionality of the Section 6064.1 of the Busitiess and Pro- ' fessions Code of the State of California might well be —- to ceeenge. any nranner petitioner's showing of his good moral ” - On the state of this record, then, petitioner's good “ment by force or violence or other unconstitutional 3. The Record Continucs to Show, That Petitioner ~ Does Not Advocate Overthrow of the Government : unjee- (Tags Br. (1956) p. 58, (fn.)). It would appear from — * ‘pressed publicly or privately. © 201936 Record, page 173. —24— ; : - G é - “5 f ch . . . acter and.contrary to any Views which he has ever ex- '’’ In this connection it is ‘pointed out that Exhibits introduced atethe first hear-_ ings before the Committee of Bar Examiners: and_he- fore this Court at the time of the fitst decision indi- _ cated. that even in writing in the public press petitiorier had. at all times expressed abhorrence of any doctrine of force and v iolence.™ 3 5 aie ns | . On this issue, also, the Committee of Bar Examiners found that petitioner had failed’ to meet his burden of - proof. This Court examined the issue and reached its . conclusion’ that Jae “In this case we are "compelled to conclude that - there is no evidence in the record which rationally justifies the finding that"Konigsberg . . .. failed to show that he did not advocate forceful .over- throw «of the government.” (353 U. S. 252, 273.) Wherein has_the. record changed one iota since. this C ourt made 7 its findings as set. forth above? . The only change is one more’ favorable. to Konigsberg. The only evidence introduced establishes even more con- _ ¢hisively his disbelief in and that his fundamental. char- acter is contrary to advocacy ‘of any doctrine of over- throw: of the government by force and violence or other unconstitutional means. . The testimony of the one live ‘witness °and the, additional letters. introduced into the’ record add additional proof of petitioner’s character in this particular. With an additional two years in which to investigate and find a scintilla of evidence to the 191960 Record, pages 20-21. . \ - ———— We contrary ne it one ia of new ev idence has been intro- “duced against the petitioner.” How then is it possible ~ ty reach any cortlusion ether than that the record re- mains ‘that petitioner | has shown that petitioner com- ‘plies with Section G064.1 0 of the Business and ProicS- ; sions Code? ‘ i 4 Where Applicant Has Complicd Fully With: All Statutory Requirements, It Is a Denial of Due Process for Respondent toxDeny Him Adin‘ssion tothe Bar, . 2 ed The record thus: shows conclusively compliance with . the only two: statutory requirements of the laws of the . State, 6f Califortiia. There -axe .no ‘decisions of the Courts of the State of California and no Rules of the Committee of Bar Examiners which authorize denial of admission: to petitioner where he has so complied. ~ As Mr. “Justice. Peters stated in his minority opinion ‘in the California Supreime -Court as « .. it is the law of this case that the record = fore the Supreme Court of the United States estab- lished, as a matter of law, that applicant without ° conflict preved that he possessed a, good moral charactet and was: a loyal citizen. The present record is even stronger in this respect. It is to be taken as established as a matter of Jaw, that appli- “cant possesses such a character and is loyal, the relevancy is thats he refused to answer questions as _ to his political affiliations. That whole thing that mere refusal to answer the questions justified re- ’ fusing certification, under the circutmstances here, necessarily violates The law of the case as estab- dished by the High Court.” 2 ‘propounded by the Committee.of Bar Examiners to Kon-~ @ Ca 2 ; "“—ZO0— B. The. Requirement That Petitioner Answer Questions _ Relating to His Political Associations and Affiliations, as Applied to the Facts of This Case s Arbitrary and” Capricious and a Denial of Due Process of Law. It is, not essential for a determination of this case that petitioner consider whtther - under any other cir- cumstances of any: other case the unanswered questions - put ‘to the. petitioner “here .would or could be relevant.” — ~ It is the belief of petitioner that asking the questions | igsberg in this ease in the light of the history of the proceedings in this case and Gn the record of this case was-an arbitrary ‘and capricious act-on the part: of the Committee of Bar: Examiners. ; _ . The Committee was well aware -of -and purported to . be fgllowing the decision and opinion of this Court and knew that a finding ef. good moral character and ‘non: - belief in. doctrines ‘Gf force, violence or unconstitu-, tional actions had .already been made by this, Court. ~ The Committee well knew thatthe only way in which ac- | tion could be taken to deny Kenigberg’s admission to the Bar was by the presentation of ,affirmative evi- dence contrary to these f indies aed edie what now became a clear burden of proof on the ret eascuinlll : 21While petitioner i is not required for purposes of determina- tion of the facts of this case to reach a decision On this matter . petitioner certainly would not back. away from the position’as- — serted befote. this Court at the. previous hearings. to the effect.” that questions re'ating to an applicant's political beliefs or associ- ations are not relevant to the issue of determining * the moral or - educational requirements for the practice of law. *2See the. Dissent of ‘Justice Traynor® in this case: __ “Whatever its refevaney ina particular context, however, i is an extraordinary variant of the usual inquiry ifto crime, for the attendant burden of proof upon any one under ques- é i ‘ - % = oe ie ar 7.7 a Lis . . e w* T. ec ’ Guemilttes chose, on the cé trary, not to: present ee. any such evidence” but instead sought to avoid the ef- fect of the Conirt «decision ‘by forcing petitioner’ intg 2’ refusal to answer questions. which the Committ € “well: knéw could not, have any proper effect upon their ad- wi * ‘ mitting or denyi ing petitioner to. the Bar. - * Petitioner had taken an honest, forthright, ‘principled, ~and consistent position in regard to the self- same, iden- tical, “questiotis at the first hearings. This Court had held that his refusal to answer these questions. was - principled ‘and that this refusal under the circumstances of this case did, not provide a basis for refusing admis- sion to the Bar. .* ; 4 - tion poses the nenediate threat of prior restraint upon the ‘free speech of all applicants. The possibility of mquiry into . ‘their speech, the heavy burden upon’ them to establish its innocence, and the evil- repercussions of inquiry despite in- nocence, would? constrain them to_sjfeak their minds so non- committally that ne one could ever migtake their innocuous “words for adveécacy. This: grave danger to freedom of --~ speech could { averted without loss. to legitimate investiga-. tion by. shifting the burden to the examiners. Confronted - with a prima facie case, an- applicant would then be obliged _to rebut jt. “Such a wet is logically dlictated by S peiser v. Ran- ‘dall, 337 U..S) 513 [78 S. Ct. 1332, 1352, 2 L. Ed. 2d 1460]. The pots there assumed that the’ state could ‘deny a ‘tax ¢xemption to-one whose advocacy. of the unlawful . overthrow of the government was such that it could be pun- istted as a crime. Mindful of the risks to free speech, how- _ ever, it ‘took’ care to-hold that the state could not compel’ the taxpayer to prove His right to an exemption and that therefore an oath as to his innocence of unlawful advocacy ° _ could not be required. There may be differences of degree -in the public interest in the fitness of the applicants for tax exemyftion and for admission to the Bar. Even thouglt the state may have more at ‘stake in the latter situation, it ‘is not therefore freer to emdanger free speech needlessly.” 2 Obviously no such evidence was Or is avaitable and the Com-* mittee knew this to be the fact. 2 - — a This Court had’found that there was no statute nor - was there any decision of court nor was there any rule of the committee which permitted the arbitrary denia! of admission by reason of refusal to answer these ‘ques- tions: : Nevertheless and in the light of these facts and in the light of their foreknowledge that petitioner could _ not in good moral conscience Tespond to the questions, the Committee persisted in putting the questions to peti- tidner and insisting upon an answer. ' What alternatives did this action ori’ the part of the Committee place before Konigsberg? - What opportuni ties did-it give the Commiittee? The Committee. informed Konigsberg that. if peti- tioner refused to answer his application would be denved. y for that reason alone. Since there was no rule of the committee or statute or decision which permitted this re- fusal in atid of. itself, to become a basis for denial of ~ admission to the Bar, the Committee could not prop- _ erly deny petitioner. admission for his refusal to answer alone. On the other hand if the morally corroding demands of expediency were to convince the petitioner that he should. waive his moral principles and respond to the " Cemmittee’ s questions—what then? The C ommittee would then have forced olin into a position where ‘by their own rules and definitions they would! then have had to deny him admission to the Bar also. How could the Committee admit a man to the Bar where by his‘own admissions he had become an im- _ moral person when he relinquished his moral principles for purposes of expediency and personal. gain. . Would. \ <> 4 ict vii sink acm sli Se ecard BAe rdienenioniere aA entrada ris a ° ° ° - > ll PIS, eth ey cid he iG TE Ce ie OEE hn iio Rett * rear —— ef a . such a person be expected. to protect’ the ‘interest of his chent without -regard to personal or private gain? Thus, the capertee would have forced petitioner into an immoral Xet and contd then have denied him admis- sion to the Bar for having committed this highest of . . . Ye . .-+ , « immoral act—the denial of one’s own principles for per- sonal gain. Under these circumstances the very asking’ of ‘the questions became an, arbitrary, capricious act on the part of the Committee and,a denial of due process of law insofar as it applied to this petitioner and ‘under the ‘factseof this case. The — calculated and designed to deny petitioner admis ion to the Bar regardless of his response, .* 2 C. The_Judgment Below Is Inconsistent With the . Opinion of This Court. + . 1. The Denial of Admission to the Practice of Law for Refusing g towduswer These Specific Que wes W. ‘as. Arbitrary and: Capricious Since It W as Not ~ Permitted by Any Law, Decision or Rule. The Committee of Bar Examiners and the Supreme: - Court of California below, es its retysal to admit petitiener om’ this statement appearing in the degision of the majority of this Court in the 1957 decision: “1 it were possible for us to say that the Board “had barred Konigsberg solely because of his re- ' fusal to .respond “to its inquiry‘into his political: associations and his opinions about matters of pub- lic interest, then we would be compelled to decide . ‘ . . far-reaching and complex questions relating. to freedom of speech, press and assethbly. There ¢. . : p ) ) L —3— no, justification for our straining to reach these difficult problems when the Board itself’ has not _seen fit, at any time, to base its exclusion of Ko- nigsberg on his failure to answer. If and when’ a state makes failure to. answer a question an in- — dependent’ ground for exclusion’ from the Bar, then this Court,-as the cases arise, will have to determine whether the exclusion is constitutionally permissible. We do not mean to intimate any view on that problem here nor do we mean to approve or . disapprove Konigsberg’s refusal to answer the particular. questions asked him.” (353 U. S. 252, 261-262.) ; o The Committee ignored compgtely the preceding par-? agraph and ‘in so doing has fallen’inté the vice which brings this matter before this Court. This. paragraph reall: ~ : “There.is nothing in the California statutes, the © alifornia decisions, or even ip the rules of the “Bar CJ.u.imittee, which has been called to our at- tention, that suggests the failure to answer a Bar Examiner’s inquiry is, ipso facto, a basis for ex- cluding an applicant from the Bar, irrespective of how overwhelming is his showing of good char- acter or loyalty or how flimsy are the suspicions of the Bar Examiners. Serious: questions of. ele- mental fairness would be raised if the Commit- tee had excluded -Konigsbérg simply because he failed to answer, questions without first ‘explicity warning him that he could. be barred for this rea- son alone, even though. his moral chagacter ant loyalty were unimpeachable, and then giving him a chance to compy.. In out} opinion there is noth- err _* Tag ty Wigton at ld math saan 5 Wn tale ain rE Sa .’ ing in the ‘record which indicates that the Com- ‘mittee, in a matier of such grave importance to Konigsberg, applied a brand new exclusionary rule to his es agian: witheut telling him that was doing so.’ ’ (353 U. S. 252, 260-261.) .* . There was no statute which permitted denial of Ko- nigberg’s petition for admission, ta the practice of law in the light of his. “overwhelming showing of © good ' character and loyalty”; no new, statute has been passed ~ since that date and even if it = could not properly be applic ‘d to the Konigsbery case? Thete have been no decisions of the Suprgme Court of sie prior to the decision of the Court. in this case. Fie Was no honpial rule of the Bar Examiners’ in effect ‘at the time of the Supreme Court decision ‘and no new rule has — passed since the Supreme Court decision. All that has happened in this case is. that by ar- bitrary’ and capricious action the members of the Committee of Bar Examiners declared in.an across- “the-table conversation with. Konigsberg that if he de- clined to answer the questions . they would | consider ° > this a sufficient ground for denying him admission to the bar without more... This was. simply a matter of committee fiat determined at the moment and with mut authority or precedent in the law. *To the contrary the record is very clear that numerous ef- forts to pass such a statute or even related statutes have failed in . the legislature and before the _State Bar itself. See Footnote: 20 on page 38, infra. _ ’ ‘ - 32 a ae x , Under these circumstances it cannot be said that. ‘there is any change whatsoever from the status of the. case when it was before this Court in the 1956 term. oo. e 2. Respondent Failed to Follow the Mandate of .This Court and in so Doing Denied Petitioner Due Proc- ess of Law. s | The Supreme ‘Court of California tual to certify petitioner in 1953 even though petitioner had gompleted his educational requirements and had satisfactorily passed the Calitornia Bar examination. The State ‘Supreme Court ‘without opinion (although three jus- ‘tices dissented) denied the petition for’ review and it was thereafter that this Court granted certiorari and heard: argument as to the constitutional issues raised by this denial, This Court mnaaea its opinior’ by stating-that: “The judgment of the court below is reversed and case remanded for picid proccemmngs | not incon- sistent with, this opinion”, The only action coniiatians with this opinion was the admission of Konigsberg to the practice of law in the State of California. Any other-act’on was inconsistent _ with the opinion and a denial of due process of law —,and equal protection of the law as to petitioner. | The Court stated the issue in the first Konigsber 9 case. clearly and unequivocally : “We now pass to the issue which we believe is . presented .in this case: Does the evidence in the record suppoft any reasonable doubts. about Ko-- tr 3 : case This question is then answered: clearly in the nega- tive when the Court-says: - . it cannot fationally be said that ‘they support sub- stantial doubts about Sr moral” fitness to practice law.” e . And again . the anferences of bad moral character which the ' Committee attempted. to draw from Konigsberg’s refusal to answer questions about ris page, at- filiations and opinic ms are unwarranted. -And:- then finally the Court concluded that ° “without some authentic reliable evidence of un- lawful or immoral actions refeeting adversely upon him, it is difficult to comprehend why the State Bar. Committee rejected a background and character as morally unfit to prac- (353 U, S. 252, 2, 270-271, 273. } man of Konigberg’s ~ tice law.” The C munittee of Bar-Examiners-in making its re F * port to the Supreme Court of California «treated. the | as though ttoweresatiew-vase coming betore the Committee With’ an applicant who had no prior record ‘ hefore the Committee and who had not taken his case before the United States. Supreme Court. mittee of Bar Exdminers treated the matter it was possible to approach’ Mr. * ‘kind of an historical vacuum fr which the past had - - Fhe Soom as though Konigsberg in) some —33- nigsberg’s good character or loyalty to the - ernments of state and nation?” (Koniysherg 2 State Bar, 353 U. S. 252.) : “When these items are analyzed, we believe that’ v “On the record before us, it is our judgment that 6: are RT ae Se ae | nea jappened, this Court had never heard the case cand a Bar applicant -by. the name of Konigsberg «as in’ some capriciots manner refusing to ‘answer ques- “tions of, vital importance to the Committee. lt is not for this peuitioner to discuss” the legal ef- fect of such a hypothetical case becatise this iS not and.was not’ the Konigsberg case at the time of the last hearing before the Committee. uf Bar Examiners. . It has already been pointed out that contrary to the ° statement of the Committee of Bar Examiners in its report to the Supreme Court the refusal to,answer ques: tions by Konigsberg did not constitute an obstruction _ of the investigation of the Committee but in Tact. consti- tuted a moral dilemma for Ronigsbelg wherein any answer that he gave to the question would prov ide basis*for the Committee to deny him admission “to mr Pod . Bar. & ees ; 2° The Supreme Court of California appears to assume’ that the mandate of this Court was that: the Conimit: tee of Bar Examiners: should simply call ‘Konigsberg back and warn him that ‘his fafure to answer. ques- tions would jn. and of itself c mstitute a basis for deny: ing him admission to the Bar. . But as Mr. Justice Peters in his ‘dissenting opinion in the California. Supreme Court said “Tt ts certain ‘ the Supreme Cert could not-have meant that without a statute. or ‘role the Board of Bar Examiners could -ereate a ‘rule’ simply by warning Konigsberg that the effect of re tursal to answer would be to cause the Be Board to refuse his certification. Such: a warning coming four years atter Konigsberg . first appeared before the Committee does not comply with ‘rules of elemental f ! | 2 . a7 Pes oe oh aaa it thrudete vse tT). ee AD eae a? ycietet’. . Rae Pa Te Te Akt. ee oe chee, ae ee es ’ 9 —_ eat : — a a i abe =) — fairness’ as ‘required by the Supreme Court: of the United States.” “( Konigsberg v. State Bar, 32 Cal. ad 769.) na D. The Formulation: of a Brand New Excigslsnery Rule and Applying It Solely to the Petitioner Herein Con-- stitutes 4 Denial of Due Process arid Equal Protection of the Law. = 8 #~ ° The Committee and the C aarp below attempt to pred- icate their decision on’ the fofmulation. of some sort ‘Sf a “rule” which gllows denial of admission: to -the bar to Konigsperg solely by re&son of: his refusal to answer questions which they considered to be relevant. - Petitioner has already pointed out that no such rule or statute or law or decision existed or exists in the inwes' of the State o f Calipsnia but for purposes ot this phase of the discussion we shall appreach the sub- Examiners could by some fiat be raised to the dignity and stature of a rule. , The Committee of Bar “Examiners in 1934 clearly spelled the basis Upon which they were denying -peti- tiener admission te “the Bar. They stated that he had failed to meet his burden of- proof that he was-a person ot good moral character and that he had failed to meet his burden of proof that he did nog advocate the over throw-of the govefnment by force and-violence or other These were stated as ‘the > — . . . . . inconstitutional means.” “The letter from the Committce of Bar Examiners to Konigs- ler dated May 17, 1054 read in part: .— - “Its the Committee's determination that you have net ® sustained the burden of proof (1). that vou are peksessed af the good moral character required by” Section GWO(c) of the State Bar Act or (2; that you comply with the pro- visigns of Section 6064.1 of Said Act.” _— —o *ey-- aoa ‘ject ap though th action of the Committee of Bar’ L ‘ : ” v ‘ basis of their action, ae Supreme Court of Calitor —36— nie refused to review.” It thereby: approved the basis of the action by'the Committee of Bar Examiners. , . Any unspeken rule existing “oday providing tor the exelusion’ Of an applicant solely for refusal to answer a material question existed at the time of the prev: ious hearing” yet such a “rule” w as not set forth as a ground fers the denial.of the petitioner and in: fact the very contrary was true.” The Committee of Bar Examiners in the Sta: . of California selected its basis for denial. . It spelled out ‘that basis in’ its own decisicn and’ in ‘its briefs before this. Court. Now and only after this Court passed upon the merits of that basis has the Commitice shifted its. ground and endeavored to find sorfe other hasiy’ upon which. to continue to deny’ pe- titioner his constitutional rights.‘ This Court has frequently sti ated tha: admi nistrative officials may not exceed their Statutory powers or even their own self limiting -tegulations when‘ dealing with Mega ot : ‘rsonnel, . Thus in Peters. wv. Hobby. "349 U.S. 331, 75'S. Ct. 790: (1955); Cole v. Young, 32d u. 2 S536. 1 S. Ct. 861° |" (1956) ‘and Service. 286A pril' 20, 1955. . = The Committee has at no time suggested that any formal rule has ever been promulgated by it either, before or since the first Konigsberg hearings. . g See the respondent’ s brief before this C ourt ip the October Term of 1956 where the entire document és predicated on the fact that petitioner had failed to meet his burden of proof and “that he was being rejected on the basis of evidence presented which raised. inferences of bad*character. See. particularly Sec- tion Poof Tht respondent's brief.. pages 41-55, where Respondent’ relies on matters found in the record of the -first hearing which this Court held to be inadequate grounds. : . ———— Oe ee en ag me te eee = ~ —— wo AR ae eer eee ee ee - os oy nee: . a oe oS aati -v Dulles, 354 0. 363, 77S. Ct. 152 - (1987), this = : ' ourt held that a government officials had exceeded — their own defined authority. ! This attack upon the constitutional rights of the petitioner is the more serious where it takes place atter judicial determination that the first basis: for the ex: clusion of the petitioner was unconstitutional. As Mr. Justice Peers stated in his dissenting mannan before the California Supreme Court “How many times does the issue of whether ap- plicant ,assesses a good moral character and is a loyal citizen Lave to’ be tried?- Those wete the issues presented. Having sustained his burden as to those isswes, on what rational theory can it be held that the State Bar, at this late date, with “no mew.evidence, can offer a new aftd different excuse for denying certification? When does this litigation come to an end? | I had always thought, until [ read the majority opinion in this case.-that' our systef.ot law was predicated on the funda- mental theory that. when issues were between liti- gants have once been determined, they cannot be, relitigated. I, had always thought that litigants were required to raise all relevant issues in .one proceeding, ] had assumed that parties cannot yy tigate their case piecemeal.” ee In this sittiativin it would appear thet the Comuit- tee of Bar Examiners has carefully tailored a rule and tormulated it -f6r the first time in a manner designed and calculated to deprive this particular petitioner of - is constitutional right to practice the profession of’ bis -own choosing, Such a-rule if indeed it is a rule -has 7~) eo WF - | ; a | &. —38— eres ‘ all of’ the earmarks of f bill attainder (See United” States v. Lovett, 328 U. S. 303, 66 S. Ct. 1073 (1946)).. ‘How else car? stich a rulé be interpreted when’ con-* cededly it hag never existed before this Court's deci- sion and where it is utilized solely for the purpose of -avoiding the effect of the decision of this Court in er : ' “a Ty this particular case.” ,_ . toe. , 201; should be noted in this connection, that the legislative his- tory. of. bills attempting to accomplish by legislation ‘what the _ Committee of Bar Examiners here has endeavored to do by retro- active. rule would indicate that the acts of the Committee are contrary to the legislative intent of the State of California. In 1949; Senator Jack Tenney introduced Senate Bill 298 proposing a loyalty oath for lawyers and applicants for the Bar. and proposed .that investigations of loyalty based upon the files of the Attorney Gereral arid ‘investigating ‘committees - among other things be utilized in dletermining the loypity of lawyers and — applicants. This bill was opposed by the Biel ot Bar Governors of the State Bar of the State of California and representatives - from the State Bar appeared before the legislature and at least ih part as a result of such appearance the bill was not passed by the State legislature. : : : ‘ Le ae In 1954. a bill was introdueed- by ae successor to Senator Tenney as Chairman of the Senate Committee on ~ UnAmerican Activities. “Senate “Bill 1666 \rould have fequired attorneys to disclose connection with organizations which advocate the fprceful oyerthrow of the government. It was in this session of the. Legislature that Section 6064.1 of the Business’ and Pro- fessions Code was passed. Ge In 1955 further amendments to the Business and Préfessions . " Code were proposed to the State Bar of California. providing ~ for discipline of attorneys in the event of ‘advocacy of forceful overthrow of the government’ or membership in an organjzation . which so advocated ot provisions for punishment’ of fe ea ee > Se en oe . . E. It Is Arbitrary, Unreasonable, Capricious and a Denial of Petitioner's Liberty and Property Without Due Process of Law to Deny Him Admission to the Bar | Solely Because of His Retueal to Reveal His Political Affiliations. . . ‘ “The Questions Asked Falj Within the Cutie tionally pragected Area of F ‘reedom of S preen, Press. and Association. Tt i is clear that states dice theit ‘properly consti- tuted agencies such as their Committee 0° Bar Examin- ers Rave the right to protect.citizens o: the state from unethical and unskilled attorneys ‘and, to establish proper - rules and regulations to exclude incompetent’ persons or unprincipled persons trom the- Bar. ‘ in California persons have been denied admission to the Bar for proof of commission of acts involying moral Sicekonens ’ attorneys who refused to answer’ questions relating to member- ship in organizations of the nature referred to above.” Hearings were held formally in-Los Angeles and San Francisco on these proposals. “ Over 1100 lawyers -within the State of California formally notified the State Bar of their opposition to jhese pro- posals and the Board of Governors of the State Bar. of Califorritrsecy rejected all portions of these recommendations which could have -had the effect of requiring answers from lawyers pertaining to association with particular organizations. Even the limited por- tion of the ogiginal proposal which eventually became Assembly Bill 4800 in the 1955 State legislative session was defeafed Y the State. Legislature.. Thus git is clear that ery effort to incorporate inte law in California the purported rule which the Committee of: Bar Ex- aminers has’ utilized as a basis for denying admission’ to the Bar to the petitioner has been defeated either by the Board of Bar | Governors of the State*Bar of California or by the State Legis- lature. | 3 . . a A ° a ; a ‘eeenie turpitude and bear ag dire thy om their competence as attorneys or for deficiencies in their moral a In the first Konigsberg case before this “Court the State of Calisornia asserted that writings of the pe- . titioner of a political nature ‘and alleged associations of the petitioner were sufficient to allow the State to . draw the. conclusion: that petitioner had not met his. burden of proof that he was of good amoral character and did not advocate the overthraw of the government by furce and violence or other ‘unconstitutional means. "« _ The respondent now appears ambivalent .in “its ap: proach to the case. Respondent ‘argues that the only reason why petitioner: is being excluded’ is because he_ has declined to answer relevant questions put. to him ” by: the. Committee. Yet respondent discloses its own dilemma in’ the “brief in opposition to the petition for writ of certiorari” and in the argument of this case | before the Supreme Court, of the State of California _ when it utilizes the same information and makes the same inferences from the evidence presented in the first. 20°F hus in ‘ie re Garland, 219 Cal. 661, 28 P. 2d 354 the peti-- tioner was a convicted forger; in Jn re Wells, 174 Cal. 467, 163 Pac. 367 the petitioner was guilty of committing a fraud upon the.court in a prior proceeding; in Jn*re Hovey, 7 .Cal. Unrep. ~ 203, 81 Pac. 1019, disbarment proceedings involving commission of a crime had -been instituted against the applicant in another - state; In Spear.v. State Bar of California, 211 Cal. 183, 294 Pac. 697, the applicant “mtide false affidavits accompanying his appli- cation. There is no reported case in California in which the ap- plicant was! denied admission by reason of his political associa- tions or affiliations or his refusal to answer questjons regarding such associations or affiliations, e ’ a) ‘ : s k . hearing as a basis for establishing sah aint of the / questions which petitioner declined to. answer.* Yet only by utilizing these inferences could the com: mittee tind a basis. fur its contention that the. ques- ° - tions ‘Siok were relevant. profession of his dwn choosing. "Bat in such‘ease this _liefs, associations or membership, ‘of his‘own choosing. It is true that when a man 1s denied admission to the Bar of a State-because of fraudulent actions. in the past or because of some unprincipled. acts or falsi- fication: of statements before the Committee of ‘Bar Examiners, he i is being denied the right to practice the - denial is based upon specific acts ‘on the part of the petitioner and these specific acts directly relate to the ean } requirements of the practice.of law. In the instant case the denial to petitioner is. based not upon any acts whatsoever” failure to answer questions rel@ting to his political be- There canbe no question that one of the inalienable rights of “The theory upon which our “To understand this ‘ambivaient position of the State Bar one need only read pages 30 to 36 of the transcript of the oral argu- ment before the Supreme Court of California in which counsel for the State Bar read at great length fromn the selPsame articles introduced at the first hearing wherein this Court held that “We do not believe that an inference of bad moral character can ra- tionally be drawn from these editorials.” “Except insofar as the Committee of Bar Examjners is in fact denying him admission naw for. the selfsame reasons they de- nied hita admission in 1953 but are assigning different reasons, in order to avoid the effect of the-courts prior defusion. but is based upon his: a citizen is the right to practice a profession. . —42— * politica initibubions rest, jp tliat all men have ‘certain inalienable rights—that among these are life, liberty and . the pursuit of happiness: and. that in the pursuit” of happiness all avocations, all honors, all positions, are alike open to everyone, and that in the protection of these rights, all are equal before the law”. (C umuMings v. Missouri, 4 (Wall.) U.S. 277, 321).* | In addition we are here dedfing with questions in- volving freedoms protected by the First Amendment to . the Constitution, which have a “preferred place... in’ fo Q our scheme (of gagernment) .. . not,permitting dubious ‘intrusions’” ( Thomas v. Collins, 323 Us S. 516, 329). This Court -has frequently weighed in the balance _restrictions on the fundamental right of freedom of. speech and press and assemblage against the importance or value to the State in particular area in which it proposes ‘to restrict these rifthts. “oar Only in the prior Konigsberg case and in the case: Of Schware v. Board of Bar Examiners of State of New Me.xico™ have these relative values of the State against the rights of the individual prospective lawyer _ been so weighed. Th both of these cases this court prop- erly found that restrictions on freedom of expression had been improperly applied in. the "State below. It should be noted at this point thatynot only are we in Paes a RE OL Tee ee eT PTT Te ee ee Ee, peer ry Toe the highly sensitive field of possible inf ringement on the | See also Truaxr v. Raich, 239 UW. S. 33, 38: Vick Wo v. - Hopkins, 18 U. S. 356, 370; Allgeyer v. Louisiana, 165 U. S. > 378, 589; Smith y. Texas, 233 U.S. 63°, 636; Mayer v. Nebras- ka, 262 U.S. 390, 399; Takahashi v. Fish Commission, 334 U. S. 410. ; 4353 U. S. 232 (1957). : a First Amendment Constitutiona] rights of the petition- er but we have entered’ this field by the thin thread an inference and an even thinner thread of fajlure to answer questions the refevency Of which is predicated an that same inference. It is true that petitioner has a legal burden of proof and in the normal case must carry that burden for- ward. But in the present case this very .court has said that petitioner has amet’ every burden of * proof placed upon him by’ the decisions, statutesor rules of the State of California. Respondent new comes fdr- ward and at this late stage*asks questions without in- troducing any evidence ,of wrongdoing oF any other evidence justifying the asking of the questions which fall within the critical area of the: First Amendment. Certainly under these ,circumstances the balance of the State’s interest as against the ‘interest of the individual mast be resolved on the side of the individual.™ o “See testimony ‘of Professor Thomas.I. Emerson of Yale Uni- “versity Law Schooi in the’contempt trial of one Edward Yellin. at Hammond, Indiana on March 10,1960 quoted jin full in.20 Lax yers Guild Review, 41, 49 (1960). where he says: oe “For instance, in my classes, both in constitutional law, in connection with the Konigsherg case, and ‘in political and’ Civil rights, there has been discussion as to whether mem- bers Of the Commtinist Party: should be allowed to be mem- fers of the bar, J know from the discussion in class, which I} think is reasonably open, what the views of the various members of the-class on this may be. The majority of them, rather large majority, have.at least stated the position, and I think~it je’ their Correct position, that whether a lawyer is a member of the bar, should not depend upon whether heis a member. ofthe Communist Party but upon the qualifications, the nierits. When, however, the students were called before the character committee for admission to the harathey were asked the question, in many instances, as to wher or not they believed a member of the Communist ‘7 —44— This is particularly true because we are dealing in an area particularly sensitive because it involves the independence, ot the Bar. * - ‘ * Mr. Justice Blacks i in this very case mace this point. clear when he pointed out that : “We recognize the importance of leaving states _ free to*select. their own Bars, but it is equally : important that the State not exercise this power in an arbitrary ( or discriminatory manner nor in such a way as to impinge on the freedom of political expression Gr association. A Bar composed of lawyers of good character is a worthy ebjective but it is unnecessary to sacrifice vital freedosm in order to. obtain ‘that goal. .It-is also important both to society and the Bar itself that lawyers be urintimidated—free to think, speak and act . 2 (353 U. S, 252, 273.) : It seems clear that the apparent rights of the State upon which. the Committee seeks te’ rest its intrusion + + —— Party should be a member ‘of the bar.’ "Many of them, con- trary to the view thai they had expressed privately, ex- pressed the view that a Communist should not be admitted tu the bar. That I think is < ) indication of the most un- | -fortunate consequences of an attitude of the most unfer- — tunate consequences of an attitude for which I think the legislative committeés 4 + very largely responsible. “It seems to me a very poor way for a person to enter the legal profession, by being forced to conceal his views on peril of knowing that he: will be in difficulties if he does not. And it is that kind of an impact, as well as the impact of being noncommitted and unwilling. to participate in the sol; tion of significant problems that I think is quite widespread as the result of inquisitions, or investigations, pa pardon me, of legislative commnittees,”” See for further discussion of. this point the petitioner's dis- cussion in conyection w ah the Reilan and Lerner cases, | . . ag, into the personal views, beliefs and associations of the petitioner ‘is predicated upon the assumption that the answers to the questions asked inight lead the Com- jttee to some information about petitioner which could Himaiety lead them to the conclusion that he advo- cates the overthrow of the government by force and violence. . ' . The petitioner however has never once refused to - answer the questions directed to the uiltimate , fact which the Committee must de. Time and time again petitioner informed t ommittee that he would answer any questions regarding facts which indicated “that he had such bélief or advocacy. He promised to answer any questicn relating to specific facts but tie Committee brought forward no such facts™ nor aske any questions indicating the existence of any such facts. This court has pointed out that simple membership | in the Communist Party without scienter could not be- come the basis for punitive actions against individuals.” PY Yet ‘here the accusation of past membership in the Communist Party was made on the slimmest of ev idence which this Court has found did not provide a suffi- cient basis for a finding that petitioner had nor met his ‘burden of proof that he had. good moral character. That -same ‘testimony clearly indicated that petitioner had not been involved in any acts of force and violence. What therefore could the respondent gain by asking —_——— . a Although required by their own rules and the statement of their own counsel that they would do so if they had any such facts. SHieman v..Updeqrat, 344 U.S. 183: * Slochotcer v. Board of Hivher Education, 3530 U. S. S51. 2 spe . —46—- the same-questions which petitioner had on high moral principles declined tovanswer at. the previous hearing? The answers to the questions could avail the commit- tee nothing unless they had additional evidence upon which*to predicate their subsequent denial ‘of, admission to the Bar. Evenchad the petitioner answered the ques- tions at issue in the ‘affirmative it would have sul been necessary for the respondent go establish scienter in order to deny him admission to the bar. Petitioner denied that he had ever participated in any acts Rivcle- ing force and violence or that he had belonged to any organization which advocated or participated in any such acts. This denial constituted a denial of the ul- timate facets w ‘hich the respondent must prove in or- der to justify a denial 4f admission. Since petitioner denied that he knew of any such atts or that he had , participated’ in any such acts, only by bringing for- ward evidence of such acts weuld the respondent have been in a*position to proceed -further against him arid in this area petitioner always indicated his willingness to cooperate to the complete satisfaction of the Com- mittee but the Committee did not bring: forward any evidence because .no such evidence existed. - - ee ° 39Respondent concedes in its “brief in opposition to petition for writ of certiorari” that simple past membership in the Com- munist Party was not a sufficient basis to deny admission to. the: Bar of California. Note also in Exhibit’ B that the same Com- mittee of Bar Examiners had admitted a petitioner who conceded that he had previously been a member of the Communist Party. ch niin ra Decisions of This Court in the Beilan and Lerner Cases Are- Disting guishable. € Without discussing /the validity of the position of the majority of -this court in the cases of Beilan+ v. Board of Public Education, 387 U. S. 468, and Lerner v. Cascy, 357 U. S. 468, petitioner asserts that these | cases ‘are distinguishable from the Konigsberg case. It is basically the pesition of petitioner that the only decision which governs the facts of the Konigsbery “case is Konigsberg v. State Bar, 353 U. S. 252, and that the facts of the present case differ in no degree from the facts preserited to this court in the 1955 term. In the Beilan case, . however, Mr. Justice Burton. pointed out that the Pennsylvania ee C ourt . had previously held that * ‘incompetency” included * ‘del: iber- ate and insubordinate refusal to answer the _questions of his yadministrative * superiorlin a vitally important matter pertaining to his fitness.” Thus, the court was not drawing any inferences from the Tefusal to answer ot merely equating refusal to answer with: incoti de- tency as previous! ty determined by the courts of, Penn sylvania. * Similarly, in the Lerner case the determina- tion to discharge the plaintiff for his fHwre to an- 6 ae ae ar elie c . swer questions was predicated ‘on a statute -y hich per- . mitted a finding of “lack of candor” to fie equated with “doubtful trust and reliability.” , Konigsberg relied solely on his right to be free from questions regarding his political af fikations and asso- te yaes aie : 8 , ciations under the first amendment to: the constitu- tion. “This ,court held that his position in this coms): ea nection was not frivolous and there twas no showing ~~ that it was not based upon high principle. Nothing in the record of the subsequent .procegdings, changes this conclusion in the slightest.” : Both Beilan and Lerner were employees of govern: mental agencies. The standard to be applied in beth / of. these cases was: a standard established for master- servant wr employer-employee relationship.” No employer-employee relatiofship. exists between the State of California or the State Bar of California and _ an applicant for admission to the independent practice 2 of law. Nothing-could he more corroding to our society’ than a situation in which the lawyer -became beholden ° “to the State in the same manner that an employee must be beholden to his employer. - Of all of the professions existent within our socie- ty, no profession has a yreater reqttrembent for inde. — pendence and a greater need to gyoid the relationship of Shaster-servant with the Side or Sedan of the State. One of the primary responsibilities of the law- * yer is to protect the rights of the individual fron? en-. —croachment by the State, and by the same token it is: . s ® | . r ‘ Tt shofld be noted in- this connection that both Beilan and Lerner relied principally upon the protections of the Fifth ‘ Amendment. . ‘iI the brief filed by appellee Casey im the Lerner case before this court, the writer distinguished the Konigsherg case from the Lerner v.-Casey case by pointing out. that no “employer-em- plovee” relationship existed in the Keaigsherg case and that thi provided a distinguishing characteristic from the Lerner v. Casey .situation (see appellee's brief before this court dated February 24, 1958 at page 19). ‘ —9- the lawyer w Ki nuast protect the State against encr: mac hy- ments on society by the individual. Only by renffin- ing free and independent cari the legal profession prop- erly antl adeguat: ’ ¥ perform this vital function in the working of our democracy. Ti for one moment we allow the attitude to, prevail that’ the lawyer is simply an employee of the State, or the servant of the State, from that moment onward thes citizens of our society will have lost Kank most precious advocate and protec: “tor—the independent lawyer. The holdings with vegard to an emplovee- es ay worker and or an employee-teacher -2nnot be equated “with or become authority for a ruling IN Connection : with an applicant for’a license to enter a fret ame) tn- dependent profession. Betlan - and Lerner are further sine from: the Keonigsbera Case in that in this case ‘the PRAT toner refused to answer questions which were propounded ¢ him only_after he tad established the thasic tacts WHE he was called upon to answer under.the law: (1) That he was of good meral character and (2). that he: did ‘ot ‘advocate. or believe in the overthrow, of _ the a ernment by force or violence or other unesnistituti mal” means. . | In both Beilan and Lerner the questions were asked tor the first time under cire umstances which this court, ‘at least, held indicated that the law of the State in volved requiretl a response to fhe questions. In. the Konigsherg case this court had already held Wai there - Was No justification. in the laws or the statutes or decisions of. the State of California requiring K? miiys- berg to “respond te thé qyuestions: under penalty of be ing denied admission to the Bar if he tailed to so re- spond. Thus, in Beilan and Lerner the questions were \ ae — ‘. Z apparently asked iti a timely manner and tn accordance with the laws of the State involved in each case. In Konigsberg the questions were asked only after a Su-. preme Court’ decision, and at a time wher “elemental fairness” required that. the State’ admit Konigsberg without further questions. ; It is clear, therefore, that in addition to the basic principles Involved in the freedom and.the rights of the ‘ lawyer, we find that these cases are distinguishable by reason of the, court's interpretation of the laws of the State involved.” ; ; ~ When one Poe in balance the need for a free and independent Bar ggmposed of persons of high mora principle, ant dedicated to the” preservation of those | principles without concern -for the benefits or gains of actions based on the expediency of the moment, it be- comes clear that the interest of the State of California in securing answers to the questions propounded to. Konigsberg. becomes of little importance in ‘the scales, and that the Konigsherg casé is clearly distinguishaMe. ‘from prior decisions of this court in which the scales. have been balanced in a-contrary manner. Lhe ie *. “42The Barenblatt case -( Rare niet 3 _ United States, MOUS 128) is also sometimes referred to as aihesiey contrary to te position taken by Konigsherg. The Barenblatt case, however, deals solely with congressional powers and the rights of con- uressional investigating committees to inquire into matters which are. of legislative import. Since we are in no ‘wise concerned with the legislative process in the Konigsberg case, it is clear that the holding in Barenblatt cannot be..used as authority to deny Konigsberg admission to, the Bar based on the ‘facts of this | i ) case. ORR Rar ter ners Be —51— oy, VI 4 ae “Conclusion. . . For these reasons the judgment of the Court below ¢ should be reversed and upon this record the Petitioner should be adjudged entitled to Admission to the Bar” ot the State ot California. Respectfully submitted, EpwarD Mosk, ‘ | Attorney for Petitioner. ABA M- ROSENWEIN, ~--" OG; Counsel. Dated: August 19, 1960. - ” 5 ° - - Rg a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0351%3A05. Public record. Not legal advice.