# Respondents Brief — Konigsberg v. State Bar of Cal. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0351%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1961 - **Citation:** 366 U.S. 36 ## Text " © cf | ie } oe IN THE . Supreme Court-of the Enite | O. teber Term, 1960 ee on RESPONDENTS’ BRIEF. * i] > cm Pd 0 ; —_§* at e me . on A — o —— . y : » y . , 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 . 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, 27 - 2 A IN THE Supreme Court of the United States Cities Term, f960 : : No. 28 ea 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 e 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 ‘ + ‘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. je - , 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 7 . a 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. ) | | © In view of the unique and vital role played by the 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:® A “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 v e 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 er 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? ’ 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 , Q 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. 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 © privilege against self-incrimination. The Committee has de- * 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 *- “ Ss ™, — 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 : +% ee “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 —_#— . 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 v “> ~“ 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. (c) To counsel or maintain such actions, pro-. 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 ST . 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 a 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. not sufficiently warned, © This argument was re jected: : ‘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. . . ; . 3 dl } S * hy * » 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- oe “” . 3 v — | 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 avez 3 * . bd . * * ° ; : . : a . ote ® es « 4 ns . \ ‘ A ; : Cc ! . ? >. S . : = 4 * ~ . ° : ? . . * J 3 J . cs) ia ™ . . _ . = v . < s — . e ; x , ; . e ad : . \ : a . . ,. = be ‘ f . ee . y : 4 : * 7 . . ms: ans e . an . .7 ® as o a » » pe ‘ « arse . | 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- Q 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 ! a . = - plicant and by the Committee. ; Se 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. ss 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] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0351%3A08. Public record. Not legal advice.