Respondents Brief — Konigsberg v. State Bar of Cal.

Supreme Court brief1961

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oe IN THE

. Supreme Court-of the Enite

| O. teber Term, 1960

RESPONDENTS’ BRIEF. *

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me . on A —

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, SUBJECT INDEX Pa tee

; : 6 : 4 ; a

ee a | _ PAGE

: I. 5 ‘ | :

Questions .presented .......scss. peeipesidiciemndaetniaibivetessiiibis vor 1

“ea II. .

Constitutional and statutory provisions’ considered... 2

. TILL. peel “

Statement of the CASE. -.ososeeseersoee ial ERE a a aT 4,

; ‘IV. 5

Sumfhary ot xf argument.:....... totes aevesenversabeenecereesasesenerepecrnesrenseiaSittied 12

‘. $ : a - .

m « VV. ee : 4 -

he ecm, ee ee Retin < Beet nero Micensireastigiussenes pedisicaiiisicecatae 18

A. | The denial of Mr. Konigsberg’s ‘application «for admis- ee,

: sion to the California Bar by the California Supreme

ae Court is completely consistent with the decision of the

afi . United: States. Pte Court in Konigsberg v. State

0. Ts SN Cle cae seinen ovssaiptaceaahatosbrnss henesceniidh sam ‘18 i

-. B. It is now and has for decades been the law in Cali- 2

» “fornia that. an applicant for admission fo the. Bar

must be candid and frank -in disclostug his background

and qualifications for admission to the Bar and will ,

not be adniitted until such free and candid disclosure

has been made.......... tants 8 Ree itie ea . esewendes Re maces fac eT A 21

C. The refusal of the Supreme Court of. the State of

California 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 as-

sociation with the Communist Party in the présent and

*___Tecent_ past does_not_violateany—consti

of the applicant... EOS Oe cee een

oe ‘ v

: ii. «

: PAGE *

-(1) The inquiry by the Committee. of: Bar Examiners

into the applicant’ s present and ‘past membership |

- , in the Communist Party was ‘relevant to’ his quali--

~~ fications for admission to.the Bar and-did—not- 4

relate ‘to his ‘political’ belis” Sar D EELS

wy EH

(3 2) The refusal of the Supreme Court of California .

» to admit to the practice of law ‘an applicant who

obstructs an inquiry into his qualifications ‘by re-

fusing, to disclose information relevant to a de-

. “termination of those qualitie ations does not wiolate :

any provision of the Constitytiin.......2.....--cc00-i-00-0 56

(3) Petitioner was explicitly warted of the conse-

quences of hits refusal to answer... ec Bie a 45

+ .

9. VI. ;

Conclusion | <ceaperrenniocmiaeny a soneveneveiooereseuenszecseasesensey ph sonicaennnenaoee 46

a TG ee —

Appendix : : ; : ‘

Exhibit we _ Report of the C aes of Bar Examiners

Pe ST es dc wsie cree eiaiaigndliatisemnionatineas App. p. 1

Exhibit “B.” Pertinent statutes, and autherities cited.........

pesca edies = < s veitipesie ictuentcinaintnieeanaipers=cpyeecmcnrus ne 5

. -\ ,

‘ ee m, pe

o : /

a os

Xe a

716 ptNUnk ve+ ved grewennsavenenedscereaeurpunbeauontesdeyyssbtoes peblphinnencce commebocomenieias os 36

, Hallinan, In re, 43 Cal. 24 343-272 P. 2d i a

a Konigsberg v. State Bar, 353 U. S.°2527....1, 5, 12, 17, 18, 19

. Lasley, In re, 61 Cal. App. 59, 214 Pac. alana secanaiens 27

_'____ Lavine. In re, 2 Cal) 2d 324; 41 Pe regen

“Lerner v. Casey, 357 U. S. ago Cae OE 16, 18, 38,-40

Mash, In re, 28 Cal. App. 692 1 | ee. Le

Nelson and Globe v. County of Los Angeles, ae UU. § 3;

“41. Ed. 2d 494... GS AEN et NN a Leach wwneeieee IG, 38,.40

Orloft v. Willoughby, OO Oe i Se 35

‘ ‘Panhandle Oil Co. v. Mississippi ex rel. _Knox,'277 U. S. 218 44

* People v. Mattson, St Cal. 2d 777, 336 Pp. 2d 937.......2...2:.16, 42

Robinson, Ex ae, ee oe eg

Rouss, In re, 221 N.Y. 81,°J16 N. E. 782... paececseieell ve l6, 41

ar Sawyer, In re, 360 U.S. 622.00... tae toe pieinestiaccenics: ae

hee Spears v."The State Bar, 211- Cal. 183, 204 Pac’. 697....22, 27, 2B -

7% | State Bar v. Langert, 43 Cal. 2d 63, 276 P. 2d a 27, 28. 29

| Steinmetz v. Cal. State Board of Education, 44 Cal. 2d 816,

285 P. 2d BP rictccen eens inecvnaniatetameooes pula Madubccheeonanecastehdaamiaccoin 36

= Summers, In re, 325 U."S! 56t.:. cpubecamunsdecedsoncanae a

Theard y,. United States? 354°U. S. 278. 13, 16, 24, 41

Tow nsend v. The State Bar, 210 Cal. 362... A SAAN) >

. Uphaus v. Wyman, wy, oe ns LA 16, 37

eee

Wm. -

TABLE OF @UTHORITIES CITED

Cass. : PAGE

Adler v. Board of Education’, 342 U. er Fed iaramws Salaehaeeas :.. 36

Barenblatt vy. United States, 360 gees | 35, 37

Beilan vy. Board of Education,-357 U. Ss. ......... Fel eects

snsenstevecenessenscestacestvareeceseracsencesesesivesnseesess 16, 18, 38, 39, 40, 44,46

Chula v. Superior Court, 109 Cal. App. 2d 24, 240 P. 2d.398 44

Cross v. Committee of Bar Examiners, S. F. Nos. 18252,

iso4l, 18922, cert. and mart’ den., S. Ct. Mise. 334, 1450,

Nise 306," 1932. Tobe Nieiatnasiariehedtcaceae 27

Gallagher vy. Municipal Court, 3I Cal 2d 784, 192 P.. 2d 905. J+A

Garner v. Board of Public W orks of ‘Los Angeles, 341 ald

‘Wells, In‘re, 36 Cal. App. TE. re Pe: ee

. Wells, In re, 174 Cal. 467. 163 Pac. 687 ...0...c0l0-+:

RULES

Rules Regulating Admission to Practice Law in California,

Rule VII ........ ate Seen Sao 5... dcccaenivnswisastemamiapnacbementoensiant

Rules Regulating Admissign to Practic€é Law in’ “California,

Character Investigation of Applicants for Admission. ......

Rule Xo ocreeeeee- sovosenvecensecs Cee fae deto.s8 niunstecnenscnanguntoneeapsnuntn e 22

: Cael STATUTES -

* California Business and Professions Code, Sec. 6046 .......... 3, 24

California Business-and Professions Code, Sec. GO47.............. 3

. California Business and Professions Code, Sec, GON .......... 4, 25

California Business and “Professions Code, Sec. O49 .......4; 25

2 California Business and Professions Code, Sec. 6000... 2

California Business and Professions Code, Sec. GO64.1 ..... as

RRP OE ee BOK IN PSA, FE REET SSL APOE 3, 13,15, 2s. 33

California Business and Brofevsions Code, Sec. GO6S 2 42

California Business and Professions Code, Sec. 6068(h)....... 43

Califernia’ Constitutiong Art. I, See. L......... EAGER,

California: Government Code, See. 1027.5 ...... ~— 33

California StatuteS df 1927, p. 41.......... OPES APSE IR ct 24

California Statutés of 1929, yp, 1237, 1259, 1965....2 oo 24

California Statutes of 1931, p. L76l....

Galifornia Statutes -of 1937, i SESE Paar mene 24

California Statutes of 1939, pp. 347, 352 24

64 Statutes at Large, p. 987.0... hts MEAs sg ea 33

GB Statutes at Large, p. 7QD...---~-cow.ecesesemens-ceveoscecstesereess a

The California State Bar Act of 1927, See. 24.0 eect 24

The California State Bar Act of 1927, See. 25... ‘24

United States Code, Title 50, See. 780........-jeorcecisceweeeenenee 3

United States Code, Title $0, Sec. 841 (Supp. 1934) 33

United States Constitution, First ee SSE

. TEXTBOOK c

2) California . State Bar Journal, pp. 454, 457, 466, Farley,

IN THE

Supreme Court of the United States

Cities Term, f960 : :

No. 28 ea <

ae S ;

RAPHAEL KONIGSBERG,

Petitioner,

8 - * °

STATE BAR OF CALIFORNIA AND THE COMMITTEE OF

. Bar IXAMINERS OF THE STATE OF CALIFORNIA,

‘RESPONDENTS’ BRIEF.

Questions Presented.

1. Is 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 relation-

ship with the Communist Party in the present and re-

cent past consistent with the decision of this Court in

-pKaniysberg v. Statg Bar, 353 U. S. 25227.

. Does the dehial by the California Supreme Court

of the petitioner’s application for adnissic m to the Bar

‘on the basis of California law in eXistence before the

petitioner entered law school raise any constitutional § is

sue indtpendent of these presented by the substance of

the law applied ?

3. Was the petitioner given adequ ite wasning Tv the

Committee investigating his fifness ito practice “this that

his continued: refusal 2 disclose his relationship’ with

® ’

: a cu are

the Communist Party in the .present and the recent

past would result in the denial of his application for

admission to the bar? ¥§ - ; i .

4. Does the denial by the California Supreme ( ‘ourt - | }.

of the petitioner's applicatian’ for admission to, the Bar,

on the ground, that he refused ty disclose his relation- :

ship with the Communist Party in the present and the

‘recent past deny any of the petitioner’s constitutional”

“rights? , ?

Constitutional and Statutory Provisions Considered.

The Fourteenth Amentiment, provides :. :

“* * * No State shall make or enforce ahy ‘Taw

which shall. abridge the privileges or immunities

of citizens of the United States; nor+shall any ~

State deprive any person: of lifg, liberty, or prop:

erty, without due process of law; ner deny to any

person within its jurisdiction the equal protection

of the laws.” ‘

The basic act governing admission to the bar in the

State of California: is to be found: in the Busimess and .

Professions Code_of, ghe: State of California. | The tren,

cipal sections involved are Sections 6000 and GOO-4.T.

These sections read as follows:

“86060. Qualifications for Applicants:

“To be certified to the Supreme Court for -ad-

mission and a license 4 practice law,.a person whe

does not comply with section (062) shall: *

(a) Be a-citizen of the Uniied States.

(b) Be of the age of at feast 21 years.

' (c) Be of good moral character. *

am te

is (ed) Have been a bona fide resident of this

State for at least three months immediately

prior to the date -of his tinal bar- eXamna- Pe .

: tion, ; -° a ; = - SS.

ie “$O064. l (ne Advocating the Overthrow -of eS

Government Not-to be Admitted: . 2 cece

“No person who advocates the overthr. woof the

Government of the United States-or of this State

*by force,. violence, or ‘other untonstitutional means

shall be certified to the “Ep ge Court oP Bidet.

me sion and a license to practice Taw.’

The following Sections ot the Business and. Protes ¢ ££

sions Code are those w hich “empower and conimand the.

Committee to investigate the fitness of applicants for

admission to practice. :

“SOM. . Examining Cc om tee: Powers. The

ban may establish an exam ning commitice hay

. . - °

ing the power; v3 ; ,

-(a) To examine all applicaits ior admissi mt

practice law. ' : .

ib) To administer the requirements: for admis

sion to practice, . ’

To certify to the Supreme C curt fer admis-

e ‘sion. those applicants who fulfill the require

ments) prov ided in this chapter.”

“S047. Same: Rules and Regulations... Sub

ject to the approyal of the boards the examining .

committee may adept such reassnable - ‘rules lanl

regulations as may, be necessary or advisable for

the 1 PUPpose of making effective whe qn alifications

prescribed in Article 4." : — £O

‘mittee traving jurisdiction. including the exami

documents ‘pertaining to the proceediny. Ae

and with ather evidence which raised doubts in. the

“SOO4S. Commitfees to Take and Report Evi?

dence: Reports: > Receerds. The board may als. |

es . es ° ; °

appeint one or more Committees .te take evidence

on behalf. of the board and to foward Thé samt tT

, ss oe ee ,

the board witha recommendation tor action by the

board..- |

“XN record of all i ‘arings shall be made and pre-

served by the board or committee,’

. % « .

“Seay. Power ty Fake and Require. Progr.

In the conduct of inve Stigations and, upon the trial

and hearing of all matters, UR beard: and any'com-

nity corimittee, may: vy t

tay take and-hear- evidevice- “pertaining ter the —

proceeding. . Pane /

iby Administer oaths and-aftirmations.

be) -Compel by subpoena, the attendance of wit

nesses and the production of books, papers. and

—

e aie

° Statement of the Case.

In 1953 the petitioner, Raphael Konigsberg, applied |

for admission ty the Mar of tht State,of California.

Thereajter hearings were conducted | by the Southern 7

Subcommittee of the Commrttccot ‘Bar EE Xaminers and

hy the full Committee to determine awhether petitioner |

could be certified to the Celifornia Supremeé-Court as’ 4

qualified for admisfon. } | }

: i

At these Hearings, vetitioner pre sented evidence of

his qualifications. He, was confrofited with testimony |

that he w; as once a member eof the Communist Party x

ee et

mind of the Subcommittee and’ the Committee whether

*- . - a

they could properly certify hiny for admission. He was

asked, but consistently refused to answer, whether he

was. or had been, a. member ef the Communist Party

oF the United Mates or, any: organizations associated

with or dominated by that Party and refused to an-

awer other quéstions regareling related activities. | 1956

kee. pp. 109, 117 et seq., 125-426.]*

The Committee determined that the petitioner had not”

sustained the burden af proot that he was possessed

ofa geal moral. character and that he did not ddvo- |

eate the possible Overthraw of the government. . [1956

Ree, pp. 344. | .

__The :_ Supreme C ourt iy Calitornia retused to review

this determination. «with three Judges voting for °a

hearing. ia :

On-certiorari, this Court found that there was in-

sufficient evidence in the record rationally -to support

a determination that petitioner lacked geod moral char-

acter or advocated the violent overthrow of the govern-

ment, Whe right of the State to exclude Mr. Konigs-

herg from practice because he refused to divulge infor- -

Mation regarding his bac kygreund to those charged with

investigating his qualifications, after due warning of

the possibie: consequences of his refusal, was expressly ~

left open by the decision “of this Court. ( Kontysbery

State Bar, 353 UL 8.252.) 0. ¢

Arter remand, the Supreme Court of California ‘re-

ferred the matter tthe Bat Examiners for further

: ; ‘

. net F

‘In order to avoid confusion, the printed record before this

Court in 1956 and the present record will be designated in con-

‘ormance with the style employed in the petitioner's brief.

;

—"

—b—

“Investigation ‘and evaluation, [1900 Rec..p. 2.) Pur-

‘suant to the order of that Court. wt fit ( ial con-

ducted a further hearing on September 21, 19357, [1900

Rec. p. -3.].

At this hearing, the gpetitioner was advised that it

Was the statutory duty ot the Committee’ to ¢onduct

a thorough inquiry into his eligibility fyr admission to

the Bar and that it was his duty to be completely can-

did and frank with the Committee. He awas exhaus-

tively warned by Chairman Whitmore, both before and

after his examination, of the detrimerital consequences

to a favorable consideration .of his sons ape which

would ensue from his refusal to answer. ques ‘-

lating to his membership in the Communist Pare:

®T have generally outiined to Mr. Mosk the

scope of the proposed hearing today. I should like

to point out to Mr. Konigsberg, as well as to Mr.

Mosk, that the functions of the Committee of Bar

Examiners are rei ly two-fold; First to investi-

gate in connection with the requirements for ad-

IVission tu practice set forth in the Business and

Professions Cade; and grooond to make determina-

tions. «ly a result of our two-fold purpose, par-

tie ilarly our function of investigation, we belicve

t will be necessary for you, Mr. Konigsberg, to

pein our material queséions or .our investigation

will be obstructed. We would not then'as a N-

suit be able to certify you for admission, If you

-have questions we shall certainly be happy to haye

your tounsel or yor address) them tous, We

should certainly make every effort to limit: our

questions’ to those which are, material’ ones,

; * * x

“Mr. Konigsherg, as gndicated at the beginning

of this proceeding, the Committee is really charged.

with two functions, one to irivestigate, and one to:

determine, Your counsel has asked the Commit-

tee, asked me, for an indication as to the scupe

and purpose of this hearing. I indicated to: him.

what the. scope and purpose -is, and as d result you

are aware of it. We aré engaged in the function Bs

of investigating matters which We. are charged _

with the resporisibility of determining under the

law of the State of California. We have. every if-

tention and desire of carrying out that investiga-

“tive duty consistent with thé constitutional pro-

tections and freedams that the United “States :

and the California constitutions provide. We stil]

have an obligation to investigate. | believe that -

Wwe are charged with this responsibility as it might

apply to your application for admission, ‘That in-

- vestigation can be carrigd out in a number of

ways. In connection with determining whether or -

not your meet the minimum: standards to practice

_law as far as the know vledge ot the subject of law

is concerned, we’ have‘ ashed you questions in an

examination, and -you have given us answers, In

commection with other, requirenients for admission

to ‘practice, as set forth in-the-Business and P ro-

fessions Code of Mruiitabe we have asked yay to’

fill, our 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 Committee. We

have asked questions of you. We are merely now ees

engaging in that investigation which we have en

gaged in 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. * * * +

. * * .

, “Mr. Konigsberg, 1 thie you sill recall that 1

initially advised you a failure to answer our “ma-

terial questions would obstruct otr investigation

and result in our failure to certify you. With

this in mind do- you wish to answer any of the

_ questions which you hérctofore up to naw h we re-

| refused to answer?” (Emphasis added.) [1960

-° . Rec. pp. 4, 22, 26.] °

The Committee alse explained to the petitioner ‘the

‘< pertineticy of questions regarding his” membership” in

the Communist-Party to its inquiry intos this qualifica-

oe _ tions for admission to the Bar.

£5 “If yous answered the question, for ‘example,

: that you had. been a member of the Communist

Party during” s some period since 1°51 or that you

were pre -sently"a member gf the Conimunist Party,

the Committee would then. be in a position te ask

functions and purposes of that party, what the aums

and: purposes of the party were, to your know leflve.

and questions of that type. You see by failing to

you what*acts you engaged in to carry out the:

Mas & * answer the initial question there certainly is no.

\ basis and no opportunity for us to investigate w ith

. - respect to the ‘other matters to which the initial

te : “question might very welt be considered preliminary.

* * *

“Mr.. Mosk, you realize that if Mr. Konigsberg

ee had answered thesquestion that he refused to at-

. -

soa aN

»@

Pale a Te,

DO SO RP A BP

? —9.. Mg ; *

ser, an entirely new area of investigation might

be opened 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 ac-

tive member of the Communist Party and from

finding out who his associates, were in that enter-

prise we might discover that phe does advocate the

overthrow of this government by force and vio-

lence. I am net saying: that he would do that,

but it is a possibility, and we don’t have to take

any witness’ testimony as precluding us from. try-

ing to discover if he is telling the truth, * *° #”

[ 1960 Ree. bp. 29, 31.]

Nevertheless, petitioner refused: to divulge whether

he- has been a imember of the Communist Party at any

time since 1951, or whether pe is presently a member

of such party. 11960 Rec. p. 24.]? In each instance,

the’ petitioner predicated bis refusal to auswer. upon his

rights under the First Amendment and Article I, Sec-

-tion 1, of the Calitornia Constitution, {1960 Rec. p.-

24.)

The full sweep of Mr. _Ronigsberg’s ideas regarding

thi permissible Hmits of. an inquiry’ by those charged.

with examining ihe qualifications of applicants for ad-

’

—— ¢ a

“The petitioner's unsupported statement quoted on page 18 of

his ! brie f. that he ° ‘never advocated the overthrow of the govern-

ment or belonged*.to an organization that advocaid the over-

throw of the. government” certainly cues not rureclose further in-

quiry by the Committee. into this vital area:

ap a

missign to the Bar is revealed by his comments at the

_ hearing. ; |

“Chairman Whitnrore: How can we make a

determination with respect to the nature of your

_ activities with the Communist Party if you were,

assuming you were, a member if we have no Basis

fer questioning you concerning them? You won't

answer our question as to whether. or not you

were evér a member. That question in that respect

would be a’ preliminary question, would it not?

‘A. You have asked me-if I advocate the over-

thrqw of the gowfnment. if 1 committed any il-

legal “ets, e answered gladly, 1 never Have, |b

don't now, “and. I never will) T am incapable of

doing it: y ae es

Mr. O'Donnell: Suppose we don’t believe you,

don't you think we are entitled to ask you as to your

associatiou with the Communist Party and . your

menibership with the Communist Party as ‘part of

_ * our examination? :

Ss A. You are entitled to ask me only with respect

to phases of illegal activity. You cannot ask me ore

any- citizen about his activities that are legal, that

are protected under the First’ Amendment, under

the part of stormal civic actiz vity. ee a (Em-

phasis added.). ti as

. [1960 Rec. p. 28.] _ Q

. i) : a

In other words, the substance of Mr. Konigsberg’s

" positic on is: You malys ask’ me if I have committed

specific criminal or illegal acts. .You may not make any

inquiry regarding activity which is not per se illegal

even, if this: inquiry might. lead directly to evidence of

activities which would clearly. disqualify me*from ad-

ze | | -s

a ~— . . .

—l— ont tet

mission to the California Bar. If I do not admit to

criminal activity, or if you cannot prove such activity

on my. part, I anr entitled to admission to the Bar al-

though I have refused to reveal to you important areas’

of my background. ee .

The Commitee, made the following findings. in its

_report to the Supreme Court of California:

“(1L) Thac the questions. put, to the applicant ;

bv ‘the Committee concerning past or present mem-

«bership or affiliation with the Communist Party

are’ material toa proper and complete. investigation

of his qualifications for admission to practice law

in the ‘State of California, |

ie j (2) That the refusal of ‘applicant to answer -said

«questions has obstructed a preper and complete in-

: Vestigatioh of applicant's qualtHcatiuns for admis-

sion to praetice law in the State of California.

(3) That the refusal of applicant to-answer said

questions: has obstructed a necessary, and proper

function of the Cummittee under Section 6046 and

related sections of the Business & “Professir ms Code > +

‘of the State of California and under the Rules _

Regulating Admission to Practice Law in-Cali-

fornia adopted pursuant to Section 6047 and re- °

=e sections gt said Code: ¢ i

(4) That ‘in view of the foreguing, the Com-:

mittee is unable to certify that appl: cant possesses

the ‘requisite: qualifications or has fulfilled the re-

qairements for admission to practigg law in the

State of California?”

-*The report of the Committee of “Bar Examiners to the

Supreme, Court of California is - not, incluyled in the printed

transeript before this Court, but was summatized in the opinion

er [1900 Rec. p. 55] and is set forth as Exhibit A to this”

rie ?

petitioner had not-heer? denied admission tu practice be-

Court expressly stated that it did not “mean to approve

or disapprove Konigsberg’s réfusal to answer the par-

ss rs a

The Supreme Court.of California reviewed t » en-

tire record, adopted the findings of the Committe: and

refused ‘t# admit the petitioner to the- practice of law,

[1960 Rec. p. 52.

‘ IV | Tee ae

Summary of Argument. . ‘

A. In-its prior opinion, this Court stressed that the

cause of his refusal to answer relevant quesdions but

because the evidence created substantial doubts regard.

ing his moral character and loyalty. The evidence —

raising these doubts was found to be -insufficient “so

support a finding adverse to his qualifications, but this

ticular questions asked of him”-and would consider the

permissibility of a refusal to admit for failure _ an-

swer relevant questions when that situation arose. * The

case was tha remanded for “further proceedings not

inconsistent with this opinion.” ( Konigsberg . z. State

Bar, 353 U. S. 252, 261. 262, 274.)

wit is respectfully submitted that the proceedings now.

to be reviewed by this Court are entirely consistent with.

its former opinion. The petitioner has been refused

admission on the precise’ ground whi ich this Court held

not to have previously been in issue.

| Be. The re sfusal of the: Supreme Court of Coliiceni a

to adniit. the’ petitioner to the practice of law because

Justices tates and Clark’ in “their flissenting opinion con-

cluded-and respondefits in theis: Petition for Rehearing stressed °

that refusal to answer relevant questions was, and has alway> :

been, grourids for denying admission to the California. Bar.

- , alee

of his obstrnetion ‘of the examinat ton into his qualifi

cations was Rot a novel propostts ion or one that would

net have heen fMreseen dy the petitioner.

‘In the first place, there can be no question of the

sfact that it is the law of California that an appheant

who refuses to answer relevant questions pertaining to

his qualifications will not be admitted. Tue Supreme

Court of California so held inthe opinion below; and

that Court is the body with the ultimate authority in

California to set and determine the qualifications for

admission to, practice before it. The only federal ques-

tion posed is whether this rule is so arbittary and

capricious as to violate provisions of the ‘constitu-”

tion. (Theard v . United States, yon U. S. 278, 281;

Re Summers, 325 U.S. 561, 570-571.) It is quite im- —

rater’ ial whether this is a “new rule” or an. old’ one in

View of the fact that (1). the petitioner was exhaustive-

ly warned by the Committee of. the probable conse-

“quences. of his refusal to answer and (2) the power to

remove this impediment to his qualifications alw ays was

and is now in the petitioner's hands...

However, in point of fact. the opinion of the Court

below ges not purport to formulate a new rule, but

. merely construes and applies the existing law of Cali-

fornia. Sections of the Busi hess and Professions Code

which have been on the books at least since 1939 re-

quire the Conimittee’ of Bar Examiners .to examine all,

ae cants for atlmission to the practice of Jaw, admin-

ister the Tequirements: fer admission, and certify qualt-_

. Tied applicants * to the Supreme Court of Calif fornt a tor

‘admi Issi on. Section’ 6064, 1 of that Code. added 3 in 1951.

enjoins the Committee from certify! Ipg any applicant

“« omy

’

vho advocates the overthrow of the a government of the

’ . 2

‘ © . .

. 2. °

; | ae | ae

state or nation. by forcible, violent or unconstitutional

» means. The ‘Court below construed these staQutes to re-

quire the Committee to make the inquiries itf/did make;

found the questions relating to petitioner’ yAnembership

in the.Communist Party in the present and recent past

yg: ito be relevant to this inquiry: and construed’ these stat-

utes to proscribe the admission of an applicant block-

ing this Jegislatively compelled inquiry. [1960 Rec. pp.

53, 56, 57-58. | F . >

a - When at the 1957 hearing the Committee warned 9

the petitioner of this iegislative mandate, he either dis-

agreed or was ‘indifferent to. the Califérnia law ‘in this

régard.. It is respectfully ssubmitteth that the fact that ~

t petitioner bore the usual consequences of one who-ig- .«

= nores or misgauges the effect of the existing law upon

_ his actions raises no independent constitutional ques-

2 tion. This is particularly true in view of the fact that

“the petitioner is capable of correcting the impediment to

his admission at any time if his answers would fail. to

- disclose any:reason for his disqualification. _

Finally, niany decisions of the Cakfornia courts prior

- to that involving this petitioner are authority for the

. result reached here. Not only were other applicants

pricr to petitioner denied admission becausé .of their -

refusal to answer pertinent questions posed by the Com-

mittee,” but in many, cases the Supreme Court of

California had stressed the obhgation of an applicant to

; be candid: and frank in disclosing details of his back-

grourid bearihg upon his qualifications. The reason

5These petitions for admission were denied without a written

opinion by the Supreme Court of California but are “deseribed

and identified in the quotation from the article by Goscoe O.

Farley set forth on page 27 of ‘this brief.

ce | ee

-assigned by the Court for this requirement was that

wtherwise the Committee could not adequately investi-

gate the fitness of the-applicant for admission, This

reason applics precisely to the conduct of the petitioner

Although the applic: ants ‘involved in ‘the cases men-

tioned were devious while pettuoner has been boldly de-

fant, each accomplished the same result. Each fore?

closed the inq@ry of the Committee inte matters gvhich

the. applicant desired to remain. sceret ‘but ‘which were

essential to the investigation of his qualifications for

admission. .

ay is serely an unsonnd constitutional argument

that a state is compelled to admit an applicant to prac-

tice law although he refuse, to disclose relevant areas

“lof his background: that the decision of the state to Cx.

clude him for so long as this Situation obtains is so

arbitrary and capricious as to justify. federal interven-’

tion, Examples, of applicants refusing to discuss their

association with known criminal elements or syndicates

should give pause td One so contending. If there is no.

dispute with the reasonableness of the generak require-

merits, the Gnly constitutional issues presented here are

(1) ow hether the particular, questions asked and ynan-

swered were. ‘relevant to the i inquiry tao the petitioner’ 3

qualifications and (27. whether the petitioner's refusal

to answer these questions, though relevant, is entitled

to some special constitutional protections not present in:

the case of refusal to answer other pertinent questions.

“As “stated above, Section OO64.1 of the California

Business and Professions Code specifically prohibits the

respondents from certifying for admission to the Cali-

fornia Bar an applicant advocating the overthrow. of

the Government by forcible, violent or un viistitutional

a ae

means. In view of the overwhelming legislative and

judicial findings that the C ommunst Party is an agen-

cy dédicated to such ends, it cannot ‘re ssonably be con

tended that the inquiry was not relevant ‘to’ the for-

bidden ailvogacy or was an idle foray into his ,“political

beliefs.” aan |

Reetnt cases decided=by this Court have foreclosed

the contention th at Galifornia is barred from attaching.

the consequences which it did to the petitioner’s refusal —

to answer the questions posed. Vor example. a.wit-

ness, before a legislative committee wha refuses to an:

et similar questions may be punished for his refusal

to. answer. (Barenblatt o. U mited States, 360.U. S

109; Uphaus v. Wyman, 360 U.S. 722) More directly

to the point, school teachers, subway conductors and s0-

cial workers may be dismissed for refusing to answer

the same‘or similar questions directed to them by their

superiors. (Beilan v. Board of Education, 337 U,

399; Lerner v. Casey, 357 UU. S. 468: Nelson and

Globe wv. County of Los Angeles, 302 U.S. 1,4 L. Ed.

2d 494.) - ane

¢ ° .

Kach.of these decisions is pertinent and determinative

of. this appeal unless it he considered that the state has

a less vital concern in the integrity of members of. its

bar than in, the integrity of its school teachers. Subway’

conductors and Social workers. We respectfully submit

that this cannot possibly be the,case. An. attorney is

an officer of the court, and, like the court itself, is an

instrument or agency to advance the ends of justice.

(Theard v, | ‘nited States; 334 U. S$. 278, 281: In re

Rouss, 221 N.Y. QI, 116 N. E. 782: People 7. Mattson

(1959), F1 Cal. 2d 777, 793, 336 P. 2d 937, 949.)

.*The right to practice law not only ‘presupposes in its -

possessor integrity, legal aanting and attainment, but

lw) the exercise-of a special privilege, high! ily personal

irtaking of the nature of & public trust?’ (Torn

send v The State Bar (1930), 210 Cal 362, 364, 291

Pac, 837, 838.) He is charged by the legislature with

bligations requiring the highest degree of moral fiber,

fairness and competence. (Calif.-Bus. and Prot, Coc

SOOO. ) | |

lawyer in the administration of justice. the interest of

the people Of ¢ alifornia in insuring the moral and ‘pro-

fessional. ditness.of members of the bar seems obvious.

lt is respecttully sulmnitted that the requirement of full

Hisclosure by applicants of areas of their backgrounds

rele “vant to their qui alifications to peactice law as a con-.

lition to admission to practice. is an entirely reas mable

method of achieving this goal.

Finally, this Court pointed out in its former opinion

that it would be necessary to warn the petitioner of the

msequences of his refusal to answer seo that he would

not be surprised at the consequences of his course of

wtion. ( Konigsberg wv. State Bar, 353 U.S. 252. 261.

262.) At the hearing in.1957 which is. the subject of

the pre sent, review, the » [xtitioner was exbarstively

warned by the Committee of the probabie’ c: mMsequencesa

t his refusal to answer imquiries relating to his me m-

bership in the C mypiunist party [fn the present and ‘re-

cent past. | [1960 Rec. pp. "4-3, 22-23.]

—)

— . e\.

¢€

; Argument.

‘A. The Denial of Mr. Konigsberg’s Application for Ad-

mission to the California Bar by the California

‘ Supreme Court Is Completely Consistent With the

Decision of the United States Supreme Court in

Korigsberg v. State Bar, 353 U, S. 252.

A single isste on the merits was previously decided:

Ve now pass to the issue which we believe is

presented in this case: Does the evidence in the

record suppeTrt any reasonable doubts: about Ke-,

nigsberg s good character. or his loyalty to the

Governments of State and Nation #.

Konigsbery v. StatesBar, 3533U. s. 252, 202.

The question wheaer Mr. Konigsherg could be denied

admission to the State Bar of California sulely by reason

of his refusal to answer questions which were relevant

and material to a determination of his eligiblility tor ad?

mission to practice was -determiticd not to be: beiore

this Court and was not passed on by it:®

“He was not denied admission to the California

‘Bar simply because he refused to answer ques-

: tions. , : me ;

, “In Konigsberg’s petition for review. to the

, , “ : . a | aa

State Supreme Court there is no suggestion that

——_

. mS _ -2 i x ‘ . :

*This Court has reaffirmed ,m its “subsequent decisions ot

Run v. Board of Education, 357 U.S. 399, 409, and Lerner

v. Casey, 387 U.S. 468,478, that it did not intend te and did

2 : es °

not pass on these questions. Alse, it) should: again be pointed

cout that beth the’ dissenting Justices Harlan and Clark and* the

respondents in their Petition for Rehearthg unstfccesstully | op

- posed the finding of the ‘majority that this gropnd of disqualiti-

catien was separate and not. mm issue.

—1]9—

the: Commitlee had éxcluded him metely for fail

; img to respond to its inquiries, Nor did the Com-

nuttce in its answer indicate that this was the ba-

sie for its action.

al * x ¥e

“Ut it were possible for us to say that the Board

had barred Konigsberg solely becatise of his. re-

fusal to respond to its inquiries into his political

associations and his opinions about matters of pub-

lic interest, then we would be compelled to decide

Sreaching and coniplex questions relating © to-

freedom of speech, press and assembly. There is’

tho justitic: ation fog our ‘straining to reach these

ditticult problems when the Board ‘itself has not

“seen fit. af-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 inde-

exclusion from the Bar, then

this Court, as the cases arise. will have to deter-

pendent! ground’ l

mine whether the exclusion js: constitutionally per-

missible.” MWe flo not mean to intimate any view

on that problem here nor do we mean “to approve

or disapprove Konigsber: rg’s refusal to answer the

particular questions asked-him,”’ | piwagy added. )

Kenigsbery. v. State Bar, 353 U. . 252, 261.

s. 262. ‘: r

This Court thenehelil that the: evidence in the record

cil net justify a deternfination ‘that ‘Mr. Konigsberg

was not a man of good gmoral character or that he ad-

ent overthrow of the*government. The

judgemet it Sf the California Supreme Court was there-

ak and the case “rémanded for further pro-

— hot inconsistent with this opinion.” ( Kontgs-

yf State Bar, 333 U. S. 252, 274.)

\ oa

The language used indicated, and: we submit. that

it was the intention of this Court; that the case should.

be returned to the jurisdiction of the State of California:

for such further proceedings as were necessary and

proper under the State law to determine whether Mr.

Konigsberg should be admitted to the California Bar.

: | - .

The Supreme Court of California ordered the matter

feterred to the Committee gf Ba

ther proceedings¢in the light of the opinion of this

Zar Examiners for fur-

Court. Purstian® to this-order, the Committee conduct-

ed a héaring aval issued itssReport. to the Supreme

Court of California. Said Report is attached as Exhibit

A. As set forth in, more detail in its Report, the Com

. . . . 4 , .

_mittee determined, without dissent, that Mr... Konigs-

berg’s refusal to answer matérial questions had ob-

structed a proper and complete investigation .of his

qualifications for admission to practice law in’ the

State of California and that it was therefore ‘unable tu

certify him for admission to practice. |

The California Supreme Cpurt dettrinined that peti?

tioner could and. should be denied, admission to the

California Baker this ground, Justice Traynor, one

of the two disse#ting judges, agreed that’ Mrs Konigs-

“berg could pre perly be denied admission.on this rca

amd ditfered only on the question w shy acs such action

should be gaken:

“The United States Supreme Court reversed

the judgment of thiS coury/ and remanded — the

case ‘for Jelena proceedings not inconsistent (ith

tis Oo} inion.” - (353 0. Sat 274.) In view ot

the questions expressly lett undecided ‘and. the

court’s ‘vemand,- It sv ‘ny opinion that’ this court

is not foreclosed In: the United States Supreme

: oe

Court’s-decision in this case from ad ypting and ap-

plying’ to Konigsberg a rule making’ failure to an-

swer relevant questions with respect to his quali tie

cations fin independent ground for exclusion.’

; [1960 Rec. p. 59.].

We respectfully submit that:

(1) It was not the intention of this. Court to fore-

close. further proceedings, but rather to remand for

such further ,proceedings and decision 2s were appro-

priate under the law and procedures of the State of

California: and . . 7

(2) The action taken by the Committee of Bar

Examiners and the State Supreme Court.are entirely.

" ¢t msistent swith the order. of this Court. ° |

B. It Is Now and Has: for Decades Been the Law in

California That an Appli¢am for Admission to the -

Bar Must Be ‘Candid and Frank in Disclosing His

Background and Qualifications for Admission to the

Bar and- Will Not Be Admitted Until Such Free and

Candid Disclosure Has Been Made.

Petitioner and amici. curiae . have persistently ad-

vanced the argument that The State Bar and Supreme

Court of California have promulgated a “new rule” for

| the sole purpose of preventing a deserving individual

- ‘Irom practicing law. W holly aside from the fact that

this argument presupposes unlikely and unworthy com--

duct by those demonstrably dedicated to the. mainte-

ndace of high professional standards in the legal pro- .

lession, it is’ erroneous as.a proposition of law.

Stated affirmatively, the arguinent IS: The ‘re is my °

formal rule enacted by the legislature Of contained in

sthe Rules Regulating Admission to Practice Law read-

os | —22—

4 * ‘ ;

ing “An applicant whe ryfuses to answer relevant ques-

ah tions pertaining to his. fitness to practice law may be

Z denjed admission until he makes full disclosure to: the

Committee”; therétore, an appeant may refuse to an-

- swer relevant questions at his- seleetion and must be ad-

mitted tinless the Committee by, independent investiga-

tion can prove that his ‘answers would disclose his dis-

qualification. In addition to being: unthinkable trom

a practical standpoint, and directly contrary to the un-

questioned requirement in California that an applicant

' bear the hurden. of proving lis fitness to practice law,’

this proposition. is recaad refuted by the -facts that —

a (1) the Supreme Court « California is th: ultimate

body for determining the siialification’ of ‘applicants for

fadmission to practice before ©; (2) that Court has

determined, that an applicant who_ reftfses to” answer

relevant quiestions posed to him ly the Committee will

‘got. be admitted: (3) this decision’ was predicated’ pons

statutes which have been in existence prior to, 1939.

before this petitioner entered law school, (4) ‘the Su-

preme Court of California has’ previously refused. to

admit other applicants upon the exact ground present

in this case; and (5) the requirement of candor and

frankness with the Court and the Comynittee -on_ the

‘part’of applicants for admission is an established prop-

-osition of Jong standing in California,

7Rule X, Section 101 of the Rules Regulating Admission to

Practice Law in California, set forth on page 4 of petitioner's

brief, provides in part: “The applicant shall have the burden

of proving that he is possessed of good -moral character, of

removing any am all reasonable suspicions of moral unfitness.

” «and that he is entitled to the high regard and confidence of the.

public.” See also Spears v. The State Bar (1930), 211 Cals 183,

~— Me _ 188, 294--Pac. 697, 698-699; In re Wells (1917), 174 Cal. 467,.

, 474-475, 163 Pae. 657, 660.

.. —23—

Beyond this. there is no question of “surprise” on

the pake of the petitioner. to the application of such 4

requireme nt. As is established in other portions of this

brief, the petHioner was exhaustively advised through-

out the proceedings of the probable con: equences of his

refusal to answer question’,

( 1) The law of California has hee: canclusively de-

clared by the California Supreme Court, which has

ihe ultimate authority to set and determine the qualtft-

cations of applicants for*admissicn to practice before it.

In California, “though the legislature is ‘er-powered

t® set minimal standards for admission to practice, it

is the Supreme. Court of the State which is vested with

the ultimate authority to prescribe standards for: ad-

mission tO practice befere it and to determine what

applicants. meet: those: standards. (Re Lavine (1935).

2 Cal. 2d 324, 327-328, 41 P. 2d 161, 162: In re Halli-

nan (1954), 43 Cal. 2d 243, 253-254, 272 P. 2d 768,

‘73.) In the exercise of this responsibility, the Su

preme Court of California has deterr. lined that one re-

fusing to answer relevant questions will not be ad-

— In the opinion below, the Court approved the

inding of the Committee that “Konigsberg had re-

ANS to answer its questions as to his membership in

or-attiliationw with the C ommuti: ist Pz irty, that these ques-

tions were material to a proper -determination of his

qualifications, that his refusal to answer. had ofistruct-

cd the investigation which the statute requires, and, that

because Nyt this refusal the. committee is unable to cer-

tiiy“him. for admission,” _ [1960 Ree. p. 55.] There

can be, therefore, no question of what is the law on

this point in the State of California. Nor. since cach

state is free to set its own standards for admission to

ied

“

ae, ;

its bar, is it in issue whether this Court would. choose

to apply the same rule in its admission of practition-

ers to the Federal Bar. The sole issue is whether the

law as applied in the State-of California is so arbitrary:

_ capricious and unreasonable as togdéprive the applicant

yf his rights under the C onstitution. (Theard v. United

States, 354 w, -3, 278, 281; Ke Summers, 323 U. S.

561, 570-5 71, ) 7

(2) The decision. below vas based upon established

lav and is entirely consistent with and ‘predicated upoi

‘prior decisions and statutes available equally to the- pe-

titioner and the Committee, ec eae

The legislature of. California, prior, to 1939,” prov id-

ed for. the creation- of a Committee of The State Bar

to examine al’ applicants for admission to the prac-

tice of law, administer the’ requirements for -admission,

and certify. to the Supreme Court of California for

admission those applicants meeting the’ qualifications

therefor. . (Business and Professions Code $6046.)

To tultill these duties} the Committee was: authorized, to

adopt such rules and regilations as might be necessary

‘or advisable “for the purpose of maki ing effective” the

statutory qualifications for admission (Business and

Professions Code $6047) ‘and empowered to -conduct

hearings and receive and compel evidence regarding the

”

a " - 2 .

“The basic authority of the Committee to examine appéicants

for admission was {ifst provided in, Sections 24 and 25 of The

State Bar “Act of 1927 (Calif. Stats. 1927, p. 4 Setween the

- years 1927 and 1939, the authority granted by these sections

was amended amd amplified (C alif? Stats.gl929, -pp. 1257, 125%.

1965: Calif. Stats. ‘1931, p. 1761; Calif. Sfats. 1937, p.. 1492)

until it was codified in its present form in 1939 (Cahf. Stats.

1939, pp. 7) err . ba? ’ <<.

‘—25—

qualifications of applicants. - (Business and Profes-

sions Code $$6048, OY, )

One of the substantive qualifications for admission,

Which it is the duty ‘of the Committee to “make ef-

fective’, is that the applicant not be a person ‘who

advocates: the overthrow of the Government of the

——————

United States ur this State by force, violence,,of other

unconstitutional means.” (Business and Protessions

Code §6064.1). This section ‘specifically enjoins .the

Committee from certifying such a person for’ admis-

sion, . ee

. The cotirt below, after citing thesg statutory provi- .

stuns [1900 Rec. .p. 33]: held that Section 6064.1

“clearly requires the Committee to inquire” into the for-

bidden advewacy [1960 Rec. p. 56]; that questiens re-

latin? to recent ur present menibership in the Commu-:

nist Party ayere relevant to ‘this inquiry [1960 Rec. p

(SO!; that’ petitioner's refusal to answer the questions

obstructed the inquiry ; and that _ P

“Implicit in the statutory. provision’ for. review

of the conmittee’s refusal to ‘certify. an applicant

+ is the power of this court to admit one- not. so’

- certi#ied.” But to adm:t applicants who refuse to

«. answer the committee's questions upon these—sub=

jeets would nullify the concededly yalid legislative .

. ° 4 - ‘« ——

direction: tu the cotimitteé. Such a rule would

effectively stifle committee inquiry upon issues leg-

islatively declared to be relevant to that issue. We:

capnot in good. conscience deny the committee the

right. to inquire into a matter as to which it must

‘cértify.” [1960 Rec, 57-58 |

Pe ie tee ae eM i

"At the hearing ‘of September 21, 1957. the Commit-

tee exhaustively Warned the petitioner that the Commit-

“0

| <

‘ —2b—.

tee constmucd’ the statutory directives under which it

vuperated to creg {uire it _ remuse ty certily au ay pplic: in)

Who, refused toanswer relevant inquiries Unter his qpral-

ifications. [1060 Rec. pp.4-3. 22-23.]" The petitioner

either disagreed with this mri ueaaen or was, indi fter-

ent to the law of California in view « 1 his 4nsistence

that he had a constitutional right to refuse te answer

and yet be certified.

Therefore, the stbstance. of the matter is. that_ the

petitioner Was Ww ron and the Committee Was right in

Ws. estimate Of the’ existing law of California. The

petitioner chose to stand on his éstimate of What that

law was, proved to be incorrect and suffered the nor-

mal consequences incident to lgnering or misgaugine

the effect of the existing r law upon one’s actions. “It is

respectfully submitted thai this fact raises no constitu-

tional issue independent of those considered in Point

‘C” of this Argument ,

In addition to the significant fact that the petitioner

‘was’ not the first applicant to be denied admission be-

cause of his refusal to answer pertinent, questions posed

= - .

—— ad

*For. example, at the outset, Chairman Whitmore advised

the petitioner, “I have generally gttlined to Mr. Mosk the scone

of the proposed hearing today. T should: ike *to Point out to

- Mr. Konigsverg, as well as to Mr) Mosk, that the funetions’ or

the Committee of Bar Examiners are really tworfold: First

to investigate in connecton wit h the requirements for admission

to practice set forth in the besiness and i Rofessions C Code: and!

econd to make determinations. / As a result of our two-fold

Jatpoaee particularly our function of investigation, we believe

it will he Necessary for yor," Mr. Romagenery, te answer our

material questions of our investigation will he obstructed. Ws

would not then as a result he able to ce rtify you tr armission,”

. |

dans Rec. pp. 4-5.}

a Ea we

‘

‘offense

Ly the Committee.” there’ is nething new in the .re-

stuirement thatvan applicant for admission ‘to practice, ey:

law display, a-high degree of candor and frankness vith

the Committee and the Court in, disclosing: matters in.

his background pertinent. to his qualifications. ( Spears

*. The State Bar (1930), 211 Cal. 183, 294 Pac. 097;

Staté Bar 'z. Langert (1954), 43 Cal 2d 636, 276 -

P. 2d 590% In xe Lasley (1923), 61 Cal. App. 59, 214

‘ac. 284: Jn re Wells (LOIN), 36 Cal. App. 783, 172

Pac, 03; "In we* Mash (1915), 28 Cal. App. 692, 182

Pac. O61.)

_ In Spears, supra éa casein which an applicant swore

that he had not been charged with any crime, whereas”

he hadsbeen so charged but net convieted ). the Supreme

Court of California mimented upon an applicant's duty

to make full disclosure of his background:

“At the threshoki of the discussion it should be

_ Stated as definitely settled in this state that ifre-

—_——— s : °

“On a few occasions applicants have refused to ansyer

eertain pertinept questions and the Committee has rejected their

applications for such Sgon. The Supreme Court in effect has

urhel? the Committee in such a cage by refusing t6 corfsider it

(ross t Committee of Bar Examiners. S F Nos. 18252. 18641

. aft 18922. Certiorari and mandamus denied. U_ £ Supremy”

‘

i pe eS ee Ot eee

Court, Mise. 334 Oct. 1950 and Mase. 5306 Oct. 1952.

- .. Sometimes the person under investigation invokes the

eek al

aes

ned to cert, such persons jor admission on the groun! such

Netusal forecloses the Committée from effectively goursuing a

YA £

-lecitrmate and’ necessary lineeof inquiry. The Califurma Svpreme

‘yurt has recently denied a petigon for writ of review m such

& case, Brooks v. Committee of bar Examiners, L. A. No.

2Me7: Oetaber 6, POS4." ("Character Investigation of Applicants

ot stdimisstort,”Gosco ©. Farley, Secretary, Conmmittee of Bar

Lsanuners (7954), 24 Calif. state Bar Journal 454, 457, May

. al *-

“

™,

— se

- . 4 ©

spective of the outcome of any charges preferred

against an applicant for admission to ‘practice law

in this State, whether he be convicted, acquitted or

the charges dismissed, a duty rests upon said appli-

cant to make a full d@osure of such char, *s to

the committee charged. with the duty and the respon-

sibility of investigating his fitness to: practice law

in this state. We are. aware, that this requirement

calls for a high degree of frankness and truthful

ness on the .part of the attorney making: applica-

tion for admission’to practice law in this state, but

no good reason presents ifself why such a high’ stan-.

dard of integrity should riot be. reqnired. * bala

Spears v. The State Bar, 211 Cal. 183, 187,

294 Pac. 697, 698. mee

In. Langert, supra, involving an applicant who had

concealed prior disbarment. proceedings Whichghad been

initiated against him in another state. the court ex-:

plained the reason for the requirement that an -appli-

mittee: me ; |

“Tt was Langert’s plain duty to truly, reply to

the questions asked by the Committee of Bar Exam-

‘ aners. (Jn re Jacabsen, 103 Cal. App. 236 [287

P. 133]; Ifa -Lasiey, 61 Cal. App. 59; 0.

[214 P..284]./) “tT he facts with respect to his prior .

- conduct in. the practice Of-the law in Illinois might -

- have justified an order refusing to allow him to

‘cant make complete and.truthful disclosures to the Com-

take the bar examination in this state. Truthful.

answers to questions bearing uwpen his. conduct

in the communities in which he. had lived before

“=

®» coming to California, at the least, would ‘have jus~

tified further investigation of his.record.”"

State Bar v. Langert, 43 Cal. 2d, 636, 639,

276 P. 2d 596, 597.

Although the petitioner chose to obstruct the investi-

"gation of the Committee into his qualifications by ‘de-

: fiance rather than the more devious methods employed

by the applicants. questioned in.-the above cases, the re-

le = sult was’exactly the same. His conduct prevented any .

furdier fnquiry into the. area he sought to foreclose.

As in the case of Langert, “truthiul ans®ers” by the

a} ; . ° ‘

peuitioner to Yuestions bearing upon his membership in,

the Communist Party “at the least, would have justified

further investigation of his record.” 7

a :

“The comments of the District Court of, Appeai in the Vash

case are likewise pertinent: “The only défense that the respond-

ent would make, if permitted, to the ‘charges contained in the

3 accusation, is, as foreshadowed by the allegati¢ns of his answer,

iB that it was his opinion at the time he made his application that

q the €riminal, and disbarment proceedings prosecuted against him

‘in other jurisdictions were neither bona fide norjust, and that

therefore, the court would hate, granted «his ‘application - regard-

‘less of such proceedings. In‘ether vords, having™ convinced .

a himself that, he was innocent of the charges pfeviously preferred

+. agaist him he’ concluded that even 1i the court. had been in-

formed thereof, it would have. treated them as matters of little -

.or no'moment. If we were to concede the sufficiency of such

a defense we would practically oust ourselves of jurisdiction to

pass on the moral charactér of an applicant to- practice law. * * *”

| Eamphasis added.) (Jn re Mash, supra, 28eCal. App. 692, 697,

‘153° Pac. -961,. 963.) ee

Se &

cee —30—

C. The Refusal of the Supreme Court of the State of

‘California to Admit to the Practice of Law an Ap-

plicant Who Prevents Determifiation of His Qualifi-

cations by Refusing to Disclose the Nature and Extent

of ‘His Association With the Communist Party in the

Present and Recent ‘Past Does Not Violate Any Con- .-,

" stitutional Right of the Applicant. is

. The position taken bythe petitioner before the Com- .

mittee calls into question the very power of the State -

of California to admit to the practice’ of law only those - fi

who meet minimal] qualifications determined: by the :

State to be. necessary in those vested with a vital publi,

trust. For if petitioner is correct in, his estimation

of the limits imposed by the Constitution upon inquiry

inta the qualifications of, applicants ‘for admission to’

.. the Bar. the State will have no greater tight to demand

candid and frank disclosure from its prospective law-

~syers than from defendants before its criminal courts.

Each applicant for admission ‘in California must exe-

cute under oath @ formal application which contains in- -

quiries regarding his age, residence, pri6r and present

addresses. citizenship, occupation, general education,

“legal education and moral character. He is further re-

quired to furnish a-set of his fingerprints. (Rule

VII, Rules Regukating Admission To Practice Law In

California.) Some of these avenues of inquiry are of ©

paramount importance to a thorough investigation of

the eligibility; of the applicant; others, such as age — —

where majority is not questioned, are of minimal or 5

peripheral moment. Hovever, few of the questions are

directly related to the disclosureof illegal activities on +

the part of the applicant. Therefore, were petitioner's ;

reasoning the law. an applicant might with impunity

refuse to answer even the most important and relevant —_#—

. <

. a ’

. -

ms, * om

questions posed to him and yet *demand his admission

to the Bat. for under petitioner’s reasoning - -all that is

reqfuredsis that the applicant dény, in the terms of the

statutes, the absence of prior illegal conduct and the ad-.

voecacy of) the forceable’ overthrow of ‘the government:

Inquiry regarding ‘speci kic events or associations, how-

ever relevant to an investigation. into the presence of the

‘prescribed qualifications,’ is supposedly foreclosed by

the constitutional .protection against interference with

. freedom of speech. Fortunately, this result is not

commandedsby the Constitution. As pointed out by Mr.

Justice Stewart avith’ respect 10 the argument that the.

richt of a lawyer to free speech might include. the right

_to contumacious and une.hical speech free from profes-

sional. consequences, | | ;

“A lawyer iia te a profession with. inherited °

standards of propriety and honor, , which experi-

ence has shown necessary in a calling dedicated .

to the aceomplishment vf. justice. He who vould

follow that calling must conform to’ those ‘stand-

\ atds. | 9

“Obedience to- ethical precepts may require ab-

stention from what in other circumstances might

be’ constitutionally’ vege speech. * * *”

Re Sawyer, 360 U. S. 622, 046-047,

Tt cannot be emphasized too strongly that The State

Bar and Supreme Court of Calif. nia, have no interest’

in curtailing the freedom of the-petitioner’s speech. We

do not contend that he may not spei ak to a certain end

or that he must speak. We do insist, however, that one

who desires to he Vested. With a. position in which the

Mherties and property of his fellow, citizens are tobe

placed in his trust must be candid and frank in disclos-’

= a

ing all details regarding his background wisek may

bear upon his qualific: ations” to be awarded that trust.

The .brief ot the petitioner belabors the point that

his every action beforé theeCommittee of Bar Examiners

and the Supreme Court of California. has been moti:

vated by a’ singular, highm: ind&iness and devotion. to

principle. Whether the petitioner - has chosen to con-

test the authority of the Committee of Bar Examiners

nd the Supreme Court of ¢ ‘alifornia because of an hon-

est personal creed or because he has something to hide

is known only“to himself or to such of his associates

as might be uncovered by a further investigation re-

sulting. from his truthful answers tp: ‘the questions re-

buffed, By his conscious ‘and deliberate obstruction of

the inquiry into his qualifications, he has narrowed the

issue to the power of the Staré of California to re"

quire candid and, frank disclosure by applicants ‘for ac-

mission to the Bar of matiers relevant to their qualif’ fi-

cations therefor: f

"Unfortunately, an inquiry into Communist af filfa-

tions today’ often evokes an emotion: lly charged re-

sponse ‘in one di rection or the other. Earnest de! rend-

ers of the Constitution rush into eaeh suc ch: situation

on behalf of or agajnst the individtial qniest tioned en-

tirely without regard-to the good faith or fairness of

his ex anuners. Ty neutralize and highlight the basic

and important | issue beforé this Court, consider what

the. situation might have been had the petitioner refused .

to disclose his association with the Mafia or a group

conspiring to rob a bank. “Under such cireun§§gances.

‘would the. Committee be compelled by the Constitution

te recommend the_admission of the petitioner to. the

practice of law although he had ‘rustrated the inquiry

ee , JS

—33— ae

of the ‘Committee into a matter vitally affecting’ his

moral qualifications? So stated, it seems obvious that

the State may condition, adffiission into its Bar upon the

‘disclosure or negation of associations of that charac-

ter. The question then presented is whether the-re-

sult should be different because the inquity frustrated,

related to “advocacy of forcible overthrow .of the gov-

‘ernment and the questions rebuifed related to the ap-

plicant’s present membership in the Communist Party.

Reason and the decisions of this Court dictate a nega-

tive response,

(4) The Inquiry by the Committee of Bar Examiners

‘ Into the Applicant’s Present and Past Membér- ®

“ship in the Commiulist Party Was Relevant to

His Qualifications for ldmission to the Bar and |

Did Not Relate to His “Political Beliefs.” °.

. Section 6064.1 of the California -Business and Pro-

fessions Code requires. that “no person who advocates

the overthrow of the Government of .the United States

bf of this State -by force, viclence or other unconstitu-

tional means; shall be -certified to the Supreme Court

for admission and a ‘license te practice lav.” As held

\ py the Stipreme..Court of Californias “this provision

clearly requires the Committee’ fof Bar Examiners] to

‘inquire as to such advocacy.” [1960 Rec. p. 56.]

_ + Both the Congress of the United States. and the Cali-

- fornia Legislature have made ‘specific findings that the

Communist P arty is an jnstrumentality of a fereign-con-

trolled conspiracy te work the forcible overthrow of

he Government of the Anitéd States.

68 Stat. 775, 30 U.S. C., Sec. &¢1 (Supp. 1954)

4, Stat. 987; 50 27 — t., Bet zea:

-Calif. Gov. oe, Sec 1027.5

‘

Pertinent provisions of ‘these statutes and similar au-

thorities. are set forth in exhi bit B.-

‘This Court has alse recently reiterated the relevancy

of membership in the Communist .Party to advoéacy of

the overthrow of the United States. Government cby

force.

“On these premises, this Court in its constitution-

‘ ab adjudications has consistently ‘refused tb view”

the Communist Party. as an ordinary - political

party, and has upheld- federal legislation aimed at

the Communist problem which in a different’ con-

--text would certainly Have raiséd constitutional is-

sues of the gravest character.» [Citations] -On

the same premises. this Court has upheld under’ the

Fourteenth Amendment state legislation requiring

those occupying or seeking public office to dis-

claim, knowing membership in any organization ad-

vocating overthrow of thé Government by’ force

and violence, which legislation none can avoid see-

e ing was aimed at member ship in the. Communist

Party. [Citations] _Siqilgrly, in. other ‘areas, this

Court has recognized fhe close nexus between the

Communist Paivy and vivlent overthrow of gov-

~ ernment. [Citations] To suggest that because

the Communist Party may also sponsor peaceable -

political reforms the constitutional issues before us

should now be judged as if that Party were just

an ordinary .political party from the standpoint of

national security, is to ask this Court to blind itself

to world affdirs which have determined the -whole,

—course of-our national pelicy since the close of”

World War II, affairs to which Judge Learned |.

Hand gave vivid expression in his opinion in

United States v. Dennis (CA2 NY) 193 F.2d 201,

213, and to the vast burdens which these condi-

tions have entitled for the ent! re dioica

Barenblatt v. United States, 360°U. - 408, 128-

129,

oe v

In spite of the overwhelming evidetne of the nature

of the Communist conspiracy and ‘the tindin fs of the

various responsible branches of government, of which

the.above are but a sampling, the petitioner continues

to sound the tired tocsin of forbidden intrusion into

“political belief.” (Fet. Br. pp. 18, 26, 39 and 41. )

The Committee and the Supreme Court of California

are me or concerned with the petitioner’ S political beliefs:

they are vitally concerned with his membership in an

organization dedicauals to forcibly dispossessing the citi-

“Ze ns of the United States at their constitutional form

of government.

We are net unmindful of the fact that an applicant

may not be denied admission. to the Bar solely be-

cause of membership in the Communist Party. during

the distant past and without regard to the character of

or reasons for that association. How ever, we do contend

that membership in this urganization is relevant to an

inquiry into advocacy af foxcible overthrow and that

4n-aifirmative answer would justify further probing

into the petitioner’s know ledge and understanding of its

aims and participation in its activities. No responsible

agency of the government when faced with the issue has

“onsidered the contrary to be true. (Orloff v, Will-_

mah by, 345 U. S..83: Garner », Board of Pub, Wks,

1 | 86+

of Hes Aageles;; 341 U. S.:716; <ldler 7. Board -of

Education, 342 UC. s- 485; ‘Nteinmets ‘v. Cal. State

_ Board of Education (1954), 4 Cal. 2d 816, 285 P

2d 617.) ° es

It is precisely this area ot inquiry which has been

denied to the Committee by the petitioner. ;

“(25 weg Refusal of the Supreypes Cour of California

Admit to the Practice’ of Law an Applicant

. 4 ‘ho Obstructs ait Fngiry fav His Qualiftca-

: : tions by Refusing 16 Disclose Information Rele-

vant to a Determination of Those Qualifications

Does Not V ‘iolate Anj y Provision of the C oustitu-

tion. y Ss era

The basis of the refusal of the Supreme Court of

California to admjt the petitioner is set forth | in the

opinion below: é

“Determination, Ww whether petitioner, was a mem-

‘ber of the party which has been legislatively ‘de-

termined to advocate overthrow of the government

was blocked by his refusal to ansker. * * * The

comfnitgce’s refusal to recommend him for -adinis-

sion was based upor’ his refusal to answer. inquiries

about, his relevant activities—not upon those ac-

tivities themselves, * * * Petitioner does not ques-

tion the constitutionality of the code section which’

prohibits. certification of one who atvocates un-

lawful overthrow: of. the government, ‘nor of, the

federal and State legislative declarations that the

Communist Party seeks such ov erthrow. Implicit

in the statutory provisi fon for review of the com-

mittee’s refusal to cetfity an applicant is the power

of this court to. admit one not so certified, . But

“> s .

‘ a y a

‘40 admit applicants who refuse to amswer the com-

~ mittee’s questions upon’ these. subjects would nulli-

fy the Mpcedte: dly valid legislative direction to the

committée.. Such a rule would effectively stifle

committee inquiry upon issues legislatively declared

to be relevant to that issue. We tantot in good

__ conscience deny the committee the right to inquire

into a matter as to. which it must certify.” * [1960

Ree. pp. 57-58. | Aero.

‘ The validity of the Commnittes’s inquiry and of the

consequences. to petitioner arising from his frustration’

of this inquiry is amply supported by. the decisions ot

giis Court. | M

For example, witnesses Appearing before state and

federal legislative compnittees investigating subversive

activities may. be punished for refusal té answer ques-

*flons relating .to their membership in the Communist’

Party or their association with: i gear activities.

| Barenblat z w. United States, 360 U.S, 109; Uphaus v..-

_Vyman, 300 U.S. 72.) The action taken in both .

" Barenblat and Uphaus Was. far more restrictive of the 3

individual’ s freedom to speak or not to speak “than that

taken’ by the court below. In each tase. the subject of

the inquiry was punished for his refusal to divulge °

either his membership. in the Communist Party or

- the names of those persons connected wjth a camp

deemed to foster subversive activities, Nevertheless, it

' Was concluded “that the balance. between, individual’ and

the governmental interests-here at stake must be struck

in favor of the latter. and that therefore the provisions

of the First Anfendment ‘have not Bhs oftended.”

( Barenblatt' v - United States, 360 U.S. 109, 134.)

= *

, More difectiy te the. pcalit, public eniplay

; “Fischarstat “from their employment ‘Tor refusal, whether

- on claims «1! comstizitienal priy ile psec OT. Mest, Lor als wer

questions by their employers. relating: te Uiein macnn

bership in the Communist Party." ¢/edanee. Board -

Education, 337 U. 5. 399; Eeruer &. Casey, 307 “UV. S..-. ‘f

“408; Neison and Globe ve County of Les Angeles, 32 :

U.S. 1.4L. Ed, 2d 494.) Mr. Lerner-created doubts’ 7

regarding his.“trust.and reliability” as a subway con-

ductor in New York by his refusal to arfswer questions > [7

by a state investigative agency pertaining to his present ;

membership in the Communist Party. Mr. Globe lost

his temporary’ position with, the Los Angeles County

Department of, Charities as a result of his “insubordin- J

ation”. in refusing to answer questions posed by the )

House Un-American Activities’ Subcommittee relating /

to Ms membership in a subversive oryanization. In

cach instance, no violation of Constitutional rights was |

occasioned by the dismissal of the recalcitrant witness, —

’ Beilan v. Board of ‘Public Education, 337 U.. S. 309,

is, perhaps most directly dispostive of the issues in the

case-presently before. this Court, In Bgilan, this Court

affirmed the dismissal of a Pennsylvania ¥hool- -teach-.

- er on grounds of “incompetence” as ah by his re-

fusal to ayswer to his Superintendent “whtther pr not

he had been the Tress Director of the Protfesjona See-

tion of the Communiss Political Assdciatic in 1944."

Just as did Mr. Konigsberg. Mr. ae ‘fused to

“answer this question upon the vrecat tha e¢ iriquity

was directed tw his “political and ston 7 beliefs anil

‘that he was not obliged-to answer such a question, On

this’basis, Mr. Beilan was found to have indicated his

Ca POOB I O..

a? és & ee a

—p

“>

~“

i a hell Ge ha on

—~-39—.

fitness ‘and unsuitability ‘as 2 sihauiiaashied by his .

* rerusal to answer the relevant inquiries of his Super-

intendént, : 7

“The question asked of ‘petitioner by his Super-

intendent eas relevant to the issue of petitioner’ >

fitness and suitability to serve as a ‘teacher, ™ Peti-

tioner'is not‘in-a position to challenge his dismis--

sal merely because of the remoteness in time of the

IM4+4 activities. It was apparent from the. circtim-

*, stances of the two interviews that the Superintend-

ent had other questions to ask. Petieioner’ 's refus- .

‘al to answer was not ‘based on the remoteness of ’

“his 144 activities.. He made it clear that he would

hot answer any question of the same type as the

otie asked, * * * The Board based its dismissal

upon petitioner's refusal to@answer any inquiry

about his relevant activities—not upon those activ-

ities themselvés. . It took care to charge petitioner

with incompetency, and not with disloyalty. It

found -him ‘insubordinate and. lacking in frai:kness

and candor—it made no finding as to his layalty.”

’ Beilan v, Board of Public E. ducation, 357 U. a

399, 405-400. .

This Court held that the unquestioned right of a

schoolteacher to the freeddm of his speech did not serve

to relieve him from his obligations of frankness, candor

*aned cooperation in answering inquiries made of bin

by a Board examining into his, fitness: to serve as a

public schoolteacher, ¢

“By engaging in teaching i in the public schools,

petitioner did not give up his Tight to freedom of

belief, speech or association” He did. however.

undertaké obligations of frankness, candor and co-

operation in aiisworing inquirivs made of him he

his employing Board examining into his fithess to

serve it as a public school teacher,

oe teacher works in a ‘sensitive area. in @

s schoolroom, “There he shapes the at tituide of young

“minds towards the society in which they live. In

. this, the state has a vital concern, | It must. pre-

’ serve the integrity ot the schools. That the school

authorities have the Tight and the duty to screen

‘the officials, teachers, and employees as to their:

fitness to maintain, the integrity of the schools as

a part of ordered society, cannot be contin.

_ Beilan v: Board of Publig Education, 337 U. 5..

Unless this Court should find that thé state has .a

less “vital concern” in the integrity of members of its

‘Bar ‘than in the integrity of its schoolteachers, sub-

way conductors and ‘socialworkers, the principles of the

Beilan, Lerner and Ne ‘Ison cases are directly applica-

ble to this case. No prior decision of this Court has

‘ indicated the possibility, of such a _finding.

“The two judicial systems of courts, the state

_judicatures and federal judiciary, have autono-.

mous control, over the conduct of their officers,

among whom,?in the presen, context, ‘lawyers are

included. The court’s contr 1 over a lawyer's pro-

fessional life derives from his telation to the re-

‘ sponsibilities of a eourt. ‘The matter was com

pendiously put by. Mr: Justice Cardozo, while Chiet

"Judas of ‘the: New: York, Court of Appeals.

“Membership in the har is-a privilege burdened

with conditions” - (Matter of Rouss, [22] NY

| 81, 84, 1L6 NE-782|).° The ‘appellant .was re

‘ : a on a?

celved | into that ancient fellowship for something

. More than private gain. He dame an officer of.

the court, and, like the courr® li, an instrument

OF apts ‘icy t3 advance the ends uf suslice.’ Peuple

ex rel, Karlin y. Culkin, 248 NY.465, 470, 471, 162

"NA 487, 489, OO ALR 831. * 4 47

Tieard v. United States, 354 U. Ss S. 278, 281. -

The aoe of Mr. Justice Cindato from the

~ Rouss case continues : -

ies “Membership in the bar is a privilege burdened

with. conditions, A fair private and professional

character is one of Yhem. Compliance with that

condition is esséntial at the moment of admission;

_ but it is équally essential afterwards. “* * *

[Citing ‘cases]. Whenever the condition is bro-

ken the privilege is lost. To refwse admission to

an unworthy applicant is not to ptinish him Sor-——

past offenses. The examination info character. .

like the examination into learning, is merely a test

' of fitness, # * *”

In re Rouss, 221 N. Y. 81! 116 N. E, 782.

The position of the attorney in California is one of

responsibility and’ trust. “The right to. practice law |

not only presupposes jn its possessor integrity, legal

standing and attainment, .but also the exercise of a

special priv lege. highly personal sand partaking of the

nature of a public trust.’ ( Townsend vv. The State

Bar (1930), 210 Cal, 362,.364,:291 Pac. 837: 838. )

“An attorney at law is a member of an ancient, hon-

orable and desery ingly honored profession. He is re-

garded as an officer of the court, of dny court. in

Which he “appears.” (People v.. Mattson (1959); 51°

Cal 24.777 °793,: 336) P. 2d 937, 949.) -His respon

bilities. tor the people of Califorma are spelled enut by th

legislature in Business and Professions Code S008 ;

- — —— --— ———_

“It ts the duty of an atterney:

. ~ ¢. ° .

_(a) To support the Constitution and law et

the United States and of this State.

(b) To maintain the respect due.to the courts

of justive and judicial officers.

ceedings or defenses only as appear to him legal

or just; except the defense of a- person’ charged

with a. public offense. |

(d) To ‘employ, for the purpose of maintain-

ing the causes confided.to him such means only a>

+ are,consistent with truth, and never to seek to

mislead the judge or any judicial officer by. an

artifice or false statement of fact or law.

(e) To maintain inviolate the confidence, antl

at every peril to himself to preserve the ‘secrets,

of his ckent. .

({) To-abstain. from all offensive personality,

and ta.advance no fact prejudicial to the honor or

‘reputation of a party or witness, unless required

by the justice of the cause with which he is charged.

(gz) Not to encourage either the’ commenec- ~

ment or the continuance of an action | or proceed:

ing from any corrupt .motive of passion or inter-

est. eae

(h). Never to reject, for any consideration per-

sonal to. himself, the cause e of ‘the defenseless or the

‘ oppressed.”* .

California Business and Professions Code, See:

e tion 6068.

An omer admitting an applicant to the practice of.

law. is a yudgment of the Court that the applicant pos-

sesses the requisite qualifications in wee character and

——Tearning to fulfill this public trust. (Ex parte Robin

son, 19 Wall: 305, 512.) _ Surely is bedy charged

with vestigating the qualifications ot such an appl:-

cant has a legitimate interest in requ! ring a candid dis--

Lclisttte of factors -bearing. upen his qualificatic ms equal:

to or greater than thé interest ot those charged with”

investigating schoolteachers, subway conductors and se-

cial workers. bs _— 4 —

The attempt of the petitioner to distingyish Betler:

and similar cases is predicated upen the mistaken sup-

prositi ion that they may be pigeonholed under the label

“puthlic employee cases.” In truth, the process: applied

in those cases and this. case is identical, The interest

of the public in requiring candor and frankness of the |

‘employee or applicant is balanced against the ‘interes:

of that employee or applicant in refusing to divulge

“areas of his background. Applying this test. it seems

to us that the scales tip more sthongly toward full dis-

closure in the case ofa eh Sak aaa than in the

- case of % minor piublic functionary,

We have noted the proprietary expropriation by pe-

titioner and amici curiae of ‘the concept of a fearless

_and independent bar. ‘unafraid to. defend” one who

espouses the unpopular cause. There is of course no

dispute Awith the proposition that the achievement and

thaintenance of a bar of such composition is of para-

niount importance. In point of fact, the courts and ‘leg-

islature Gf the State of California have been assiduous

in, fostering an independent and fearless bar. (Bus.

& Prof. Code $6068(h) ; Gallagher v.»Municipal Court

o ~

‘)

(1948), 31 Cal. 2d 784, 192 Po 2d 905; Chula ws. Sup.

rior Court. (1952), 109 Cal.Apyrs 2d 24; 2400 2 24

(398. ) However, we cénnot agree with petitiemer and

amici curiae that a sine que non ‘to attainment of

such a bar is the admission to it of those advocating the |

forcible demolition ot otir constitutional system of. jus-

tice or these who refuse to @pvulge areas ol their back=

ground directly- bearing | upen. their qualifications ty

practice.

Finally, the time-honored technique of raising hypo-

thetical future abuses on the part of: the Committee is

as irrelevant here as ih any, other case. ~ Suppose the

Committee purported to forbid political ‘activity ‘by at-

torneys ? Suppose the Committee interrogated appli-

cants regarding their religious belieis? The oft-quoted

statement of Mr. Justice Holmes regarding the power *

to tax is eqitally applicable to the power to investigate.

70 But this Court, which so often, has; defeated the at- ”

tempt to tax: in certain way Ss, can) dete it an attempt ‘to

discriminate or otherwise go too far: without ‘wholly:

"abolishing, the power to tax. “The power to tax is not

the power to destroy while this Court sits. r ( Ran-

handle Oil Co. v. Mississippi ex rel. Knox, 2777 U. Ss.

218, 223.) Similarly, in order to prevent unlikely fu-

ture abuses by the Committee of its authority to, exam-

ine the qitalifications of applicants it is not necessary

to destroy the fégulation of thesHoral and_ professional

fitness of the Bar.

it es ete al

No. Vat Nite 8 el a Bp era PRE Mata hos

— — eee ve

(3) ) Pelilioner Was Explicitly Warned of tte Coiise-

quences of “His Refusal to Auswer. .

Petitioner. was “clearly and unequivocally warned by

- the Committee: of Bar xan! ners that failure to an-

swer the Committee's questions. blucked “heir “inquiry

and would prevent his eine ces . |

ees As A res Of rour two-fold, purpose,

; ~ particularly our fiinetion of investigation, we be-

lieve it will be necessary. for you Mr. Konigsberg,

"to answer our mattrial questions or our investiga-

tion will be, obstructed. We would not’ thén as a

“result be able to certif y you for admission, * ._

[1960 Rec. p. } pp. 22, 26.)

- Moreover, he was advised in detail of why these in-

quiries were considered necessary’ and why his refusal |

* te answer would prevent his certification.

wd 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 Communist Party, the

Comnittee would then be in a’ position to ask you

what acts you engaged in to carry out the fune-

_ tions and purposes of. that party, what the aims

and purposes of the party were, to your know ledge, .

and. questions of that type. You see by y failing to

answer the initial quéstion there certainly is no

basis and no apportunity for us to investigate with

respect to the other matters to which the initial

question might very well be considered prelimin-

ary.” [ 1960 Réc. p. 29; see also p. 31.]

399, the dismissed’ sehoolteac her conrended that he was

_ petitioner was fully and adequately warhed and. that.

‘sociation with, the Communist Party in the present and

In Beilan #. Board of Public Education, 337 U. S.

: ‘Petitioner. complai n> that he was denied due.

prycess. because he was not sufficiently warned of.

the consequences’ of his refusal to answer his S-

perintendent: The record, however, sh ows that the

Superintendent, in his second interview, specitical-

ly warned pe* ‘ioner that his refusal to answer

‘was a very serious and a very important matter:

and’ that failure to answer the questions might

lead to his dismissal.” That was sufficient warn-

ing to petitioner that “his refusal to answer T might

jeopardize his, employment.” ee

Beilan v. Board of Public Education, 357 U.S

399, 408. . .

;

}

Under no stretch of the imagination ial the warn-

ing in the présent case be said to be less explicit than

that in the Beilan case. There can be: no question that

lack of warning is not a factor i in. the present case.-

» VI.

Conclusion.

The -prior decision .of this Court did not purport

to-determine that the petitioner r must be admitted to: the

California Bar. On the contrary, his case was remand-

ed far further proceedings not inconsistent with the -

decision, :

In the course of these further proceedings, tite pet’

tioner refuséd to answer questions pertaining to his as-~

recent past.although repeatedly warned by. the Com-

“” . 3

— | ae . me ® .

iittee examining him that his continued refuSal. would,

result in- the, Committee's failure to éertify him for

admi ssi m to praettce. -On the basis of its contryction

- of existing statutes, and in acc: rdance with its holdings

_ in _preyious cases, the; Supreme Court of California re- °

|. fused to admit the petitioner 6n the ground that his

willful failure to answes questions refevant to his quali- .

‘fications to practice law had obstructed the inqtiry of

the Committee and’ prevented an intelligent determina-

tidn of, his qualifications.

~The “action of. the California Seneeiie Court: in re-

fusing the petitioner admission upon this ground was

an entirely reasonable and constitutional exercise of its

authority to insure the professional and metal fitness

of-applicants who would: practce before it.”

The decision of thie California Supreme Court should *

thetefore be affirmed. ! . *

Respectfully ities

- FRANK B. BELCHER,

<A | Rosert D. Burcit and

) Ratru E. Lewis, *

By Frank B. BELCHER, - 8

Attorneys for Respondents. :

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| EXHIBIT “A”,

LA. No. 23266. | °

Raphael Konigsberg, Petitioner, v. State Bar of Cali-

fornia and the Committee of Bar Examiners of. the

State Bar of California, Respondents. -

Report of the Committee of Bar Examiners.

To the Honorable Phil S. Gibson, Chief Justice, and

;

' Court of the State of California:

REE See ee

On July 10, 1957, the following order was made in

- the above entitled matter: 7

‘of the United States, it is ordered that the decision

cf :this Court; ‘filed .April. 20, 1955, be vacated,

and the matter of admitting Raphael Konigsberg

State is referred to the Committee of Bar Examin-

ers for further’ proceedings. :

“CARTER, J. is of. the opinion: that the appli-

now be granted. sean wA, oo

_ /8/ Gibson, Chief Justice.”

| | a rer |

‘Pursuant to this order, the following action was

taker’ by the Committee of Bar Examinérs in the

Matter of the application of Raphael Konigsberg 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 mat-

In the Supreme Court of the State of: California.

to the Honorable Associate Justices of the Supreme.

“Pursuant to ‘mandate of the Supreme Court

to the the practice of law in all thé courts of this -

cation of Raphael Konigsberg for admission to -

practice law in all of the courts of this State shoul !

. =

- plicant and by the Committee. ;

ter entitled “Raphael Konigsberg, Petitioner, v. Stat

Bar of California and Committee of Bar E-xaminers ot

the State Bar of California’, decided May 6, 1957, 333

i eee 5 Ed. 2d 810, 77S.

“Fon. September 21, 1957, at’a hiaitan of the

Committee in -Los Angeles, at which all of the mem-

bers of the’Committee were present, the applicant ap-

‘peared with his attorney, Edward Mosk, Esq. At this

meeting thé. applicant's petition for admission was, fur-

ther heard by the Committee. “An argument by the

attorney for the: applicant. in siipport of the applica-

‘tion for admission ‘was also heard. The , applicant

was sworn and. testified at the hearing. . A witness

produced by the applicant was sworn and. testified.

Written evidence’ — offered by the applicant, and

was received by the Committee. Fhe written record of

all previous hearings by the Committee and one of its

subcommittees “on the application of Raphael Konigs-

“berg for admission was incorpofated as part of the rec-

ord of the further hearing, by the stipulation of the ap

’

(3) The application was then submitted, by. ‘the ap

- plicant’ and by his attorney. a

Ill. ;

“At the hearing on September 21, 1957, the com

mittee advised the applicant and his ®attorney that’ th

refusal of applicant to answer material questions put &

hif® by the Committee would obstruct the investigatiot

by the Committee of applicant’s qualifications for ad

‘ mission to practice Jaw."with the ‘result that the Com

mittee would not be able to certify him for admissiot

o @ °

“3

Pebisa ys Aaland

oF,

Rati Gaeedione te kanes

cid

a cch t acadcan Raa Sui I aca ae clas

baie Cha

2 ESI

ee Da aes ACE Weta a

RBS ESe RRP S

/ ii IV. ;

At the hearing’ on September 21; 1957, applicant ‘re-

fused to answer any questions pyt to him by the Com-

mittéc concerning his past or present membership -in or

affiliation with the Communist Party.

*, After further consideration of the entire record be-

; ivre’it, the Committee finds and-concludes:

_ (1) That the questions put to the applicant by. the

Committee conterning past or present membership in °

or affiliation with ‘the Communist Party are material

to a proper and complete investigation ‘of his qualifica-

tions 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 inves-

tigation 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 obstkucted a necessary and proper func-

tion of the Committee under Section 6046 and relaied °

sections of the Business & Professions Code of the

State of California and under the Rules Regulating Ad-

mission to Practice Law in California adopted pursu-

-ant to Section:6047 and related :sections of said Code.

(+) That in view of the foregoing, the Committee is

_ unable to certify that applicant possesses’ the requisite

qualifications or has fulfilled the requirements: for ad-

mission to practice Jaw in the State of California.

In Witness Whereof,. the Committee of Bar Examin-

_ {ts of the State Bar of California respeetfully-submits

Ahis report. of its proceedings on the ‘reference made i

x =

to it by the Supreme Court of the State of California

- on July 10, 1957, together wit the transeript of the

_ hearing before the Committee on September 21, 1957,

and the exhibjts submitted by the —— at that

hearing. ;

Dated: Noeuints 9, 1957. :

Sharp Whitmore, ~

“Vincent H. O’Donnell,

. George Harnagel, Jr.

Forrest E. Macomber,

Gerald P. Martin,

~ Thomas H.-McGovern, ;

John B. Surr,

The Committee of Bar Exantiners

of the State Bar of California,

By Sharp Whitmore,

Chairman.

EXHIBIT “B”.

The United States Congress has ‘found:

“The -Congress heréby finds and declares that

the Communist Party-of the United States, al-

though purportedly a political party, is in fact an

_ instrumentality of a conspiracy to overthrow: the

-Government of the United States. * * *”

68 Stat. 775, 50 U.S. C. Sec. 841 (Supp. 1954).

“As a result of evidence adduced’ before various

committees of the Senate and House: of Represen-

- tatives, the Congfess. finds that—

en @

"(9) In the United States those individuals who

knowingly and willfully participate in the world

Communist movement when they so participate, in

“effect repudiate their allegiance ‘to .the United

States, and in effect transfer their allegiance to.

. the foreign country in which is vésted the direc-

tion and control of the world C Lommunist move-

ment, were of e ; “A .

Reet, Gare, 4

“(15)° The Communist movement in the United

States is an, organization numbering thousands of

_ alherents.. rigidly and ruthlessly disciplined.

Awaiting and seeking to advance a myment. when

_the United States may be so far ‘extended. by for-

cign engagements, so far divided in counsel, of se

far in industrial* or financial straights, that over-

_throw of the Goverment of the United States by

. force and violence may see possible of_ achieve-

ment, it seeks converts far asd wide by an exten-

sive sy ‘stem. of i schooling and indoctrination.. Such.

preparations by Communist organizations in other

countries have aided in supplanting existing gov-

ernments. The Communist organization in the

United States, purstting its stated objectives, ‘the

recent successes of Communist ‘methods in other

countries, and the nature and control of the world

Communist movement itself, present a clear and

present danger to the security of the United States

and to the existenge of free American institutions,

and make it necessary that Congress, in ordef to

prov ide for the common, defense, to preserve the

sovereignty of the United States as an independent

nation, and ‘to guarantee to each State a repybli-

can form of government,. enact appropriate legisla-

tion recognizing the existence of such worldwide

conspiracy and designed to- prevent it from accom~

plishiny its purpose in the United States.”

64 Stats. 987, 50 U. S. C. Sec. 781.

Sithilar findings have been made in C alifornia:

sa | a) There exists a world- wide revolutionary

movement to establish a totalitarian dictatorship

based upon force and violence rather than upon

law. ’ 7 ;

“2 ¢: 8 8 ‘@. * *

“(d) Within the boundaries of the state of

California there are active disciplined communist

organizations presently functioning for the primary

purpose of advancing the objectives of the world

communism movement, which organizations pro

mulgate, advocate. and adhere to the precepts

and the principles and doctrines of the world com-

munism movement. * * *. ~ :

—/—

. @

“(e) One of the ubjectives of the world com-

munisn) movement is to. place its members in state

and local government positions and in: state sup-

parted educational institutions, * *. * K

“There is a clear and present danger, which the 7

Legislature of the State of California fins is great

and imminent, that in order to advance the pro-

gram, policies and objectives of the world com-

munism movement, communist organizations in the

State of California and their members will engage

in concerted effort to “hamper, restrict, interfere

with, impede, or nullify the efforts of the State

— and the public agencies of the State to comply with

and enforce the laws of the State of (California

_and their’ menakers will infiltrate and ‘seek employ-.

‘ment of the State and its public agencies.” .

Cal. Gov. Code: Sec. 1027.5

Judicial findings and comments have confirmed these

legislative finding; The foilowing are illustrative:

“The jury found that the Party rejects the basic

premise of .our political system—that chante Is to.

be bri ught about by nonviolent constitutional proc-

ess. The ‘jury found that the Party | advocates

the theory that there is a duty and -necessity to

overthrow the Government by force and violence.

—It found that the Party entertains. and promotes

this view, ‘not as a prophetic in sight or as a bit of

unworldly speculation, but as a program ‘for Win-

ning adherents and as a -policy to be translated inte

action.” |

Pennis + v. United State Ss, 341 U.S! 494." from

concurring ge ion of Mr. Justice Frankfurter

-at pages 5 a seein, Ar at By

‘Phe Communists a ¢ nu scruples against we

otage, terrorism, assassination, or mob disorder; .

but violence is not withethem,-as with the anarch-

ists, an end in itself. The ¢ ‘communist Party ad-

vocates force pry when prudciit and profitable.

Their, strategy, of stealth precludes premature of

uncoordinated outbursts or violence, except, of

course, when the blame will be placed Gn shoul-

ders other than their own, They resort. to vio- *

Jence as to truth, not ‘as a principie, but as an ex-

pedient.”

"Dennis %. United States, 341 U. S.. 494, from

concurring opinion of. Mr. a Jackson at

page 564. | (

“f.. The goal of the Communist Party is to

seize power of gowernment by end for a minority

rather than to acquire power throiigh the vote of

a free electorate. *.“* *

“2 The Communisg: Party alone among Amer-

ican Harties past or present is domiriated and con-

trolled’ by a foreign government. *° * *

“3. Violent 4nd undemocratic, means are the

calculated and indispensable ‘methods to attain the

Communist Party;s goal. * * *°

“4. The Communist Party: has sought to gain

-this leverage and hold on.the American population

by ‘ acquiring control of the labor movement.

* * *

”

.“§; Every niember of the Communist Party is

an agent to execute the Communist program.

* a x"

American Commimications Assocs v . Douds, 339

U. S. 382. from concurring and Jissenting

opinion of Mr. Justice Jackson, at page 425-

431.

De]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.