Petition for Writ of Certiorari — In Re Anastaplo

Supreme Court brief1961

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“MAR “18 19oU

. cali a [JAMES R BROWNING, Clerk

IN THE

OctroBer Tena, 195%

"IN RE GEORGE ANASTAPLO,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI TO THE

. SUPREME COURT OF THE STATE OF ILLINOIS”

° .

(GEORGE ANASTAPLO,

6030 Ellis Avenue

wv. . .Chieego 37, Hlinois

ita ; . DOrchester 3-4825

\ Counsel pro se

7 .

are :

\Mareh 18,1960.

\ .

o -~

Supreme Court of the United States

P INDEX

| _. PAGE

Opinions below _....... ionesisinenhalaelieaenlenaeeatprr thai 1

Jurisdiction ianiagnibiobideiah selina RDN rere te

Questions presented for ee ROLAND CEC ANI "3

Constitutional provisions and statutes involved ........ 6

‘Statement

1; 1950-1955 ......... a Seo Tiaras ae een oy

I III © cccscstat ics cnceccsaiia re chciaias nga aaeianadneaminasi 7

3. What is Wrong with George penne seule aoe

4. What is Right with George Anastaplo? iainlsonion aa

5. How the, Federal Questions are Presented ’...... 14

Reasons for granting the writ ..:..... essanzenneed Sake cence ae

CRPIIIEIONN” © Sacsssrsomnireslstegeesoonctonensebaamnntoccocationieicuateaneertin a 26

Appendix (bound separately)

I. Ordets of the Committee on Character aa Fit-

_ hess. in 1957 (before a rehearing ‘ was ordered

by the Supreme Court of Illinois) oseeeraepncensctonoe 1

Order of June 12, 1957 denying rehearing ...... a |

Order of July 2, 1957 denying rehearing .......... 1

Dissent of Commissioner Rothschild .......... 2

Dissent of Commissioner Sawyier .............. ae

_ IL Order of the Supreme Court of inal 3 pro-

viding for a Rehearing, September 17, 1957 (set

tine val ar hs bec Rhee Re ee 7

Bite Reports of the Committee on Character and

- Fitness, April 9, 1959 (reprinted i in 19 Lawyers

a Gpetneitietoan fit arr conn ip

Majority Report (against admission to the

Re a ESTAR SERVE Ee Gb eee Bares A Te 8

Minority Report (recommending admission) 28

PAGE

Iv. ie of the inet: Court of Illinois, No-

vember 19, 1959 and January 21, 1960, 18 Til.

2d 182, 163 NE 2d 429 ......... ETERS TE 34

Per Curiam opinion (denying. aiaienea) we OF

__ Dissenting opinion of Mr. Justice Bristow .... 53

Dissenting opinion of Mr. ~Jastive Schaefer

and Mr. Justice Davis passe Soesnk OR BA 78

-V. Letter of Committee Secretary, February 17.

1960, in response to Petitioner’s letter of Feb-.

os ee en Se Saou cues 81

VI. Constitutional Provisions and Statutes Involved 82

TABLE OF AUTHORITIES CITED

Constitutional Documents

Bian T, Tee Bi GH cicctsinnsisatntecseniencrasitminnsniensren aA "6

Amendment I, Const. Be scico ead ssioscedies - 3,6

Amendment XIV, Const, nor ene

Detlaration of Independence’ speeipeeniaitatatabeicciegnnigtinn +

; ‘Cases

Adler v. Board of Education, 342 U S. 46 ere See eae 24

sAnastaplo, In re, 3 Ill 2d 471, 121 NE. 2d 826, 348

U.S.. 946, 349 U.S. 908, 908 ............... sioetieihiseincaen 16,19

Beilan v. Board of Education, 357 U.S. 399 «0... 2

Barenblatt v. United States, 3 L..ed. 2d 1115 ............ 24

Cantwell v. Connecticut, 310. U.S. 296 ............... | Re aceon 16 .

* Various law. review and other publications are referred te

below in notes 1, 8, 16 and 20.

iii

. PAGE

Garner v. Los Angeles Board, 341 U.S. 716 savssevecenscenoes ~ 24

* Gitlow v.. New York, 268 U.S. 652> .c.c....2sessssscccssccesssses 16

.- Konigsberg v. State Bar, 353 U. S. 252 ......:.3, 4, 7, 15, 21, 24

Lerner v. Casey, 357. US. 468 resnessnnnnngemnere tO teESeSSeTT rer ~-24

= MeCullough v. Maryland, 4 Wheat. 316 einai ehaiin 25

Schware v. Board of Bar Examiners, 353 US. 232 .. es a

- 15,21,24 ...

. Summers, In re, 325 U.S. 561 ore scoccdieelaasenmnenebiainans “Se ae

West Virginia Board of Education v. Barnette, 319

US. 624 iis sassie cabdloaatahooaneabinnabaecaain 16

"Statutes

Judiciary Code—28 U.S.C, See. 1257... --eeeeesseeeeee 2

TL Rev. Stat. 1951, chap. 13, ee

Ii. Rev. Stat. 1951, chap. 110, aa 259. 58 (Ill. Su-

wee. Court .Rule 58). sevipalhennmepanbianata sopnaeonsonnenninsosanetire 6

_ IN THE

Supreme Court of the United States.

Octonen Tera, 1959 |

IN RE GEORGE ANASTAPLO,

Petitioner.

_ PETITION FOR A WRIT CF.CERTIORARI TO THE

- SUPREME COURT OF THE STATE OF ILLINOIS

Petitioner, George Anastaplo, respeetfully prays ‘for a

Writ of Certiorari to the Supreme Court of Illinois to

review the denial of his application for admission to the

- practice of law in the State of Illinois. .

| Eo eit Opinions Below. |

On June 12, 1957, the Committee on thee. i Fit-°

_ ness of the First Appellate Court . District -of Illinois

(sitting in Chicago) denied petitioner’s request for re-

hearing of his application for admission to the Illinois

bar, but not without granting him leave to file a supple-

mentary petition for rehearing with answers to two in-

—_

. te?

tember 17, 1957 ordered the committee to, condugt a re-

hearing. The committee, almost a year after completing ~

‘to recommend petitioner for admission to the bar. The

’. » Committee divided 11-6 and majority and minority reports

were filed in the Supreme Court of Illinois.

- opinion. On January 21, 1960, the court ‘below denied a .

- Justice Schaefer.and Mr: Justice Davis) filing a dissenting

‘*App. i

° 2°

terrogatories posed by the cominittee. Upon receipt of

_ petitioner’s responses to- these interrogatories, the’com-

‘mittee promptly deglined ton July 2, 1957) to grant

petitioner a’ rehearing, Commissioners Rothschild and.

Sawyier dissenting. "

‘Upon appeal,.the Supreme | Court of Illinois ‘on Setineie

the rehearing ordered by its court, refused on April 9, 1959

Upon appeal again, the Supreme Court,.of Illinois af-

firmed on November 19, 1959 the decision of: the committee

majority, with Mr Justice Bristow filing .a dissenting

petition for rehearing, with two additional members (Mr.

opinion. (18 Ill, 2d 182, 163 N.E. 2d 429), An-attempt on

the part of petitioner to ‘‘settle out of court’’ without

sacrifice of pringiple resulted in a fruitless exchange of

letters with the: committee in February, 1960. = = § *

The various opinions, orders, reports and letters that

have been referred to here are set forth ‘in the separate

Appendix. ‘to “this Petition (hereafter referred to as

Jurisdiction:

‘The judgment of the Supreme Court of Illinois ‘was en-

tered November. 19, 1959. Timely petition for rehearing

was filed December 3, 1959 and denied January 21, 1960.

. A writ°of certiorari is petitioned for under 28 € SC.

§ 1257, a title, - right, ie or immunity’ haying been -

| : , 3

pecially set up’ or clainied under. the Constitution. This

Jourt has recently granted certiorari in bar admission

‘ases inyolving facts and issues similar to those found.

n this case. “Schware v. Board of Bar Examiners, 353

U.S. 232; Konigsberg v. State Bar, 353 U.S. 252 (and again

mn March % 1960). See, also, In re Summers, 325 U. S. 561.

em ee Questions Presented for Review.

1. Petitioner’s views as to what are relevant, necessary |

or permissible inquiries ef applicants for admission to

he bar are shared neither by the Supreme Court of Illinois

nor by its Committee.on Character and Fitness. * Never-

theless, petitioner cannot, in good conscience and with —

jue regard for the common good, submit to suchi i inquiries

even should the making of these inquiries into his political

afliliations or associations be deemed? permissible for bar

admission proceedings under the Constitution, He has

referred to eminent Americans of unquestioned character

and good citizenship who have ‘supported positions similar

to his. His ‘refusal is presented as a form of..protest

against such inquiries and proceedings and: against the

test-oath-like nature of the. ‘situation with whieh he has

been confronted.

Is sich a protest or refusal, especially when petitioner

has othérwise sustained the burden of proof as ‘to his -

character, fitness and good citizenship and when the sin-

cerity of his position is not challenged, proteeted by: the

First and Fourteenth Amendments as an exercise of the

right to freedom ‘of speech for which no penalty, such as

exclusion ffom the bar, may he exacted by a State?

2 Do the decisions in’ this case by the court below and

its committee, which deny petitioner admission to the bar

despite his evident qualifications to practice law, conform

to the standards with respect to due process of law and

e > . >

- 4

S 7

to equal protection of the laws under the Fourteenth.

Amendment laid down for bar:admission matters by this —

Court in Schware v. Board of Bar Examiners, 353 US.

, 232, and K onigsberg v. State Bar, 303 U.S. 252% ,

3B. ‘Has petitioner been deprived of liberty and prop-

erty, in violation of the freedom | of speech guarantees of

the First and Fourteenth Amendments, by being exquded °

from the bar hecause of the expression of legitimate opin-

ions.about the right of revolution and the Declaration of

| ‘Independence?

4. Has petitioner —_— ae of\liberty and prop-

erty, in violation of the’ freedom of speech: and freedom

of religion guarantees of the First and Fourteenth Amend-

ments, by being excluded ‘from the bar bedause of his long-

standing refusal to answer questions about his 7

affiliations and religious beliefs?

5. Has petitioner been deprived of liberty. od property,

in violation of the due process and equal protection clauses

of the Fourteenth Amendment by being excluded from the

ae bar because of his .refusal to answer political affiliations

inquiries, the foundation :of- which. inquiries’ in and the

relevance of which to this proceeding have not only never

been established but have even been: denied by the ex-

‘plicit admission on the part ‘of the Illinois authorities. _

that they have absolutely no evidence. linking petitioner —

. with any so-called “subversive” organizations!

6. May a conscientious refusal, on plaisible-.constitu-

tional grounds, to answer questions about political affilia-

tions be treated as evidence-adverse to an applicant for

admission to, the bar without infringing upon the due

process guarantee of the Fourteenth Aniendment?

a : Og |

7. ~ Has, petitioner been deprived of liberty and . prop-

‘erty, in violation of the due process: and equal protection

clauses of the Fourteenth Amendment, by being’ cya

from _the ‘bar beeause “of the refusal of the Hllinois au-.

thorities to. give proper recognition to the record as a

\hole, a record which is overwhelmingly favorable to, pe-_

titioner, in passing upon his character if fitness for ad-

inission to the bar?

8. Has petitioner miei deprived of liberty and prop-

erty, in violation of the due process and equal protection

clauses of the Fourteenth Amendment and of the ex post

B facto clause ‘of the Constitution, by the attempt of the

-Illiiois authorities to devise a ‘‘brand new exclusionary

tule’’°whereby his: refusal to.answer any question put by

a member of the Committee on Character and Fitness

_ cohstitutés grourtds for exclusion from the bar, especially

when the refusal to answer these questions came early in

the proceedings and did not put an end to a lengthy

examination of petitioner and when-only a few of the gnany ‘

unanswered’ questions are now referred to by the com-

mittee as justifying exclusion?

9 W ould not petitioner’ s exclusion from the bar, even

if he were shown to be.a member of ‘the Communist Party .

or of the Ku Klux Klan, be ‘unjustified on this regord in

the face of the” guarantees of ‘freedom. of speech in the

First “Ainendment | and of due process of law and equal

- protection of the laws in the Fourteenth Amendment? If

_ 80,,can he be properly denied admission to the bar when

all he has done is to refuse on. principle to-answer ques-_

tions about such memberships, especially after the admis-"

‘sion by the Illinois authorities that there is absolutely. no

evidence linking him with any ‘‘subversive”’ organization?

10. Aside from the effect of other constitutional limi-

. tations upon state action, does this Court have the power

aye"

to examine, for their: wisdom as well as their reasonable-

ness, the methods and standards employed ‘in the state

courts which supply the bar of this Court and to correct

state action which excludes an applicant qualified to prac-

- tice both in his state and before this Court? If such power

exists, should this Court-exercise it in this -histance to

_ provide for the admission of petitioner to the Illinois bar

or, at least, to the federal bar and the bar of this Court?

Constitutional Provisions and Statutes Involved.

The constitutional provisions involved are Section 10,

Article I and the’ First arid Fourteenth Amendments of the

Constitution of the United States. The statutory pro-

visions involved are Chap. 110, par. 259. 58, IX and Chap.

13, par. 4, Illinois Revised Statutes 1951. The pertinent

__ text of these provisions is set forth in the separate Ap-.

pendix to this Petition.

5 Statement. no me

1. 1950-1955. Petitioner began the study of law in 1948

at the University of Chicago Law School, eighteen months

after completion of his war-time service as an Air Force .

navigator officer. His 1950 application for admission to

the Illinois bar was denied by the Chicago Committee on

Character and Fitness in 1951, denial affirmed “8 the

Illinois —s Court in 1954. (3 Ill. 2d 471, 121 N.E.

2d 826), ;

Both the court ‘and the committée stressed as justifica-

tion for their action petitioner’s views on the right of

revolution as well as his refusal on principle to answer

questions about possible membership in any political or-

ganization. This Court, with two members dissenting, re- -

‘ 4 0D P Ps :

“ fused -in 1955 to review the Illinois action. (348 U.S. 946,

349 U.S. Sus, 908.") SS

2. 1957-1960. A renewed application for-admission to

the bar was filed<“®ith the committee in 1957, after this

Court’s decisions in the Schware and Konigsberg cases.

The committee refused to consider this application after ‘

inquiring of and learning from petitioner that he still held

his former views with respect to the right of revolution

and that he must continue.to refuse to answer, any ques-

tions about his political affiliations and associations.?

Petitioner ‘appealed this 1957 decision of the committee

‘to the Supreme Court of Illinois. That court ordered the

Orde igs Se

1 Petitioner's 1955 Jurisdictional Statement in Pi, eae Court .

of the United States, pp. 9-17, presents.a careful summary of the —

initial examinations of petitioner by the Committee on Character and

Fitness in ¥950-1951. A substantial part of the record made at that

time and on which the 4954-1955 appeal was based is reproduced in .

London, “Heresy and the Illinois Bar: The Application of George -

Anastaplo for Admission,” 12 Lawyers Guild Rev. 163 (1952).

Law review and other comments an the. 1950-1955 phase of the .

case are found in The University cf Chicago Maroon, May 9, 1952;

Expose, March-April 1953;. Brewn and Fassett, 20 Univ. Chicago |

L: Rev. 480, 481-2, 501, 502 (1953); Sharp, 20 Univ. Chicago

L. Rev. 529, 544 (1953); The Carterville (IlJ.) Herald, October: 1,

1954, p. 2; I. F. Stone’s Weekly, Marci 7, 1955, p. 3; Note, 1955

Washington Univ. L. Q. 83; Note, 2 UCLA L. Rev. 224 (1955);

Starrs, 18 Univ. Detroit L. J. 195,-216 (1965); Note, 50 North-

western Univ. L. Rev. 94 (1955); Sharp, 16 Lawyers ‘Guild Rev.

1, 2 (1956); The Marion (Ill.) Daily Republican-Leader, Decem-

ber 26, 1956; Sharp, 47 Lawyers Guild Rev. 43 (1957) ; Cramton,

8 Univ. Chicago. Law’ School Record «(Special Supplement), n235

(August 1958); Brown, Loyalty and Security, 111-112 (1958);

Pritchett, The American Constitution, 465-466 (1959). rks

Petitioner..was bort-in-St. Louis, Missouri, November 7, 1925,

grew up at Carterville, Illinois, and received most of his higher

education at the University .of Chicago after his United States Air

Force service in the Pacific, Europe, North Africa and the Middle —

Fast. He is married and the father of three children. See, for

additignal biographical information, Note 16, below. |

2 App. 1; Petitioner’s Supplementary Petition for Rehearing,“June -

25, 1957 (this document is-part of the Record.)

_ committee to conduct a rehearing, specifying the questions

on which evidence should: be taken :*

~ The principal question presented by the petition for

_- rehearing concerns the significance of the applicant’ 8

‘views as to the overthrow of government by force in -

the light.of Konigsberg v. State ‘Bar of California, 353

« U.S! 252, and Yates v. United States, 1 L. ed. 2d 1356,

77 S. Ct. 1064. Additional questions presented con-

cern the applicant’s activities since his original appli- -

cation was denied, and his present reputation.

We are of the opinion that the Committee -should

. have allowed the petition for rehearing and heard

evidence on these matters, and the Committee is re-

quested to do so, and to report the evidence and its

conclusions, (Italics added.)

In obedience to this directive, more than twenty hours

of testimony were taken from petitioner by the full com-

mittee between February and May 1958 and a dozen char-

acter affidavits, references and letters Mere . put. into the

record. Another year passed, however, before the com-

mittee was ready to announce its. decision once again re-

fusing to certify petitioner for admission to the bar. The —

committee filed with the court below at that time a report

explaining its decision. Of the seventeen merhbers of the

‘ committee, eleven signed this adverse report; six com-

missioners signed a minority report recommending admis-

sion. (App. 8, 28).

' The court below affirmed its cumaittied s decision on

November 19, 1959 and, after a petition for rehearing, 00

January 21, 1960.” Of ‘the seven members of that court,

four joined in the per curiam opinion upholding the com-

mittee majority; three justices filed two dissenting opin-

_ions recommending admission. iad Til. 2d° 182, 163 N.E.

3 App., 7. This language seems to have been adapted from

Commissioner Rothschild’s 1957 dissenting opinion (App., 6) and

seemed also, in this context, implicitly to rule ‘out any further ques-

tions about petitioner's possible affiliations. See, also, _ ief

for the Applicant [in the Supreme Court of Te j, 3-5.

at .

“5 . a

_ 2d: 429; App., 34, 33, 78). It is of this decision and decree

hy the court below that review is sought.

3. What Is Wrong With George Anastaplo? As has

héen indi@ated, there are two principal grounds for dis-

‘satisfaction with the qualifications of petitioner to practice

Jaw, grounds that are émphasized in every opinion by the

Iltinois Supreme Court and by ifs committee in which his

application “for admission has ever been denied. First,

the Illinois authorities do not approve of petitioner’s

views, stated on request and over his objection, on the

_ ,right of revolution and the- Declaration of Independence.

(E.g., R. 154-157, 158-169, 174-182, 237-249, 391, 397-8).

Sometimes the Illinois authorities say. that these opinions

are-not vital but that they make other aspects of the case -

more important; at other times they recognize what hag

been true throughout, that these views are crucial to their

° adverse reaction to .petitioner’s application. This is one

ground for dissatisfaction with petitioner’s qualifications.

Second, the Illinois authorities do not approve of pe-

titioner’s conscientious refusal to answer any inquiries in-

to bis political affiliations and ussociations.‘ This has

meant, in the current proceedings, that he has ‘had to

refuse inquiries about membership er possible membership

in the Republican ‘Party, the Ku Klux Klan, the Com-

‘Commissioners Moses and Young, who voted against petitioner’s

admission to the bar, are also on record as warning him that Ahey. °

would regard adversely his refusal.to answer questions they were —

asking about religious beliefs. They insisted that such beliefs bore

upon -petitioner’s ability to take in good faith the oath of office. of

the attorney. (£.g., R. 208-210, 215-217) The- committee finally

ruled out-such questions, but-only after six weeks of sharp conflict

over them aygd after- they had had their prejudicial effect. (R. 292).

Petitioner had refused, of course, to answer such inquiries, a refusal

that the committee does not choose tv rely upon for excluding him.

Irom the. bar. .In fact, this important episode. and its significance

- are not mentioned either in the committee report or in the opinion

, of the court below but only in Mr. Justice Bristow’s dissenting ,

opinion. -App., 58-59, 74.

munist. Party, the Silver Shirts of America, and the Demo-._.

-eratic Party.’ The court below and its committee have

chosen: in their opinions to single out as significant for

passing on petitioner’s character and fitness the Com-

munist Party question among all those that petitioner has

refused on principle to answer. _ oe

The connection between these two grounds for dissatis-

- faction should be- obvious to any careful reader, of the

record, even though the Illinois authorities choose to ig-

nore it: it is historically true that questions about affilia-

tions were first asked only after and only because members

of the committee did not approve of petitioner’s views

about the right of revolution;* and it is still true that

members of the committee persist in their questions about

affiliations. partly because they do not approve of what

petitioner says about the right of revolution and the Dec

5 (R. 43, 46, 144-145, 203-204). The Republican and Democratic

Parties inquiries emerged as a result of the attempt by Commis-

sioners Bane and Young to secure an answer about petitioner's po- -

litical affiliations by’exploiting the fact that petitioner had served

on several océasions as the official election judge in his yChicago

— (R., 26-32, 201-205). (See, for an-appraisal of this episode,

App., 63). |

|__ _-$ See R. 368-380, where the proper sequence of inquiries in

_ petitioner's first appearance before the committee iri 1950 is described

in considerable detail. This description was prompted, in part, by

the serious distortion of that sequence in, the 1954 opinion of the .

court below (3 Ill. 2d, at 473-474). Yet, despite petitioner’s detailed

analysis of the 1954 error of the court below, the distortion is pre- -

served in the current opinion of that court. (App., 35-36). The court

below stoutly refuses to face the fact that the sequence of inquiries

is exactly the reverse of that described in its 1954 and 1959 opinions:

questions about affiliations came only after petitioner’s answers about”

the right of sevolution and ‘only because. committee members were

hostile to the legitimate opinions he had expressed on request. There

' ean be no reasonable doubt about this. An appreciation of the proper

sequence of inquiries emphasizes the infringement upon petitioner's

rights under the First and Fourteenth Amendments’ to freedom of

speech. See also petitioner's 1955 Jurisdictional Statement (in this

Court), 10-15, 26-27.

Pecameee

laration of Independence, Thus, even the headnotes of:

the Illinois Reporter reflect what is all too evident in both

the record and the opinion:* there is an intimate connec-

- tion in the attitude and action of.both the court below and_

its committee between petitioner’s views on the right of

revolution and his refusal on principle'to answer questions

‘ about political affiliations.’

6a The Illinois Reporter introduces his four-part summary of the

opinion with the following captions (18 III. 2d 182-183) :

“1. Attorneys at Law—applicant-for admission to the bar must

establish that he possesses the necessary qualifications.” ° .

- “2. Same—when.- applicant's views’ concerning. established - au-

thority and ordetly governmental processes cast doubt-on his ability

to take oath.” ’ “oe @

“3. Same—questions concerning Communist Party membership

are, relevant in determifing applicant’s ability to take oath in good

conscience.” a :

“4. Same—when refusal to answer questions as to membership

in Communist Party, justifies ‘denial of certificate of fitness.”

7 In the current hearings, petitioner raised constitutional objections

under the First and Fourteenth Amendments to questions about hi’~

views on the right of revolution, .objections which were overruled

by the’ committee. (R. 154-157). As is reported in the record, he

nevertheless. consented to set forth his views on this subject. Not

only did he want to keep the issues as precise and limited as possible

and to cooperate with the committee as fully as possible, but he

recdgnized that his.views on the right of revolution and the Declara-

tion of Indepéndence were already known to the committee and had

been critical in the committee’s 1950-1951 decision to ask and insist

upon questions about his possible. political affiliations (see Note 6).

Furthermore, it can be argued that there is an important practical

difference between (1) discussion of the right of revolution and

(2) inquiries into one’s political affiliations (which petitioner has

always refusedto’ answer). The first relates to an applicant’s under-

standing of the \Constitution, to which an oath-is to be taken by

the attorney; the second relate to one’s political views, to one’s

Views on the best government or party under the Constitution. Our

constitutional system can usually operate properly if the first is left

Open to discussion while the second set of views is left to the indi-

vidual to disclose and act upon as he wishes. The second has to be

protected in ‘this manner, if only because of party spirit and of the

harny that can befall the Constitution should this area not be kept

beyond the inquiry (and hence control) of a particular partisan’

government. (This concern is reflected, for instance, in the protec-

“}

4, What Is Right With George Anastaplo? These, then,

are the two grounds for dissatisfaction. with petitioner’s

qualifications for admission to the bar. Yet both the court |

below and its committee have-made-disclaimers that might

~~ have led one ‘to believe that they take iieither of these

grounds seriously. Thus, it is conceded by the committee

majority (App., 14): -

that the. views expressed by the applicant with respect -

to the right to overthrow the government by force

. or violence, while strongly libertarian and expressed

‘ with an intensity and fervor not necessarily shared

‘by all good citizens, .are not inconsistent with those,

held by many patriotic Americans both at the’present -

time and throughéut the course of this country’s his-

- tory and do not in themselves reveal any adherence

to subversive doctrines. | 7

An attempt is then made to bypass this concession by the

effort to make something out, of petitioner’s suggestion

that there might be circumstances in which ‘decrees of

courts. should be resisted. (App., 15, 40). -But the’

qualifications insisted upon by petitioner—for instance,

that such resistance should‘ be directed to restoration of

constitutional government when the Constitution has been

subverted—are ignored. (R. 174-182, 238-249; App. 55). 8

tion given the secret ballot.) .

It would be better, of course, if bar admission committees were

required to steer clear altogether of discussions about the right of

revolution as well: the distortion of petitioner's views on this sub-

ject, both in the-committee report. and ip the opinion of. the court

below, should provide warning enough against such inquiries and:

discussion. But, in any event, petitioner has sought to .keep the

issues separate: he has spoken freely about his views on the Con-

stitution (and, therefore, on the right of revolution); he has con-

, sistently refused to answer questions about possible membership in

any number of political. organizations, “subversive” or otherwise.

It is clear that petitioner would never have gotten into the “trouble”

he has if he had quickly disavowed his surprisingly orthodox views

on the right of revolution (R. 368-374); and it is also clear that

he only made matters worse for himself by. invoking what he con-

ceived to be an historic American right, that of keeping one’s political

affiliations to oneself. (See-Committee’s Point 3, App., 17.)

The sonnel disclaimer is seen in the concession, which —

petitioner could not induce. the committee to make until

ee of his six x Appearances before thepAR. 265), that

_.. no one-has stated [orally or in writing] to this

Committee that you are er have ever been a Com-

munist or a member of the Communist Party, or a

‘- meniber of the Ku-Klux Klan, or a member of the

. ° organizations or any of the organizations listed as

subversive by the Attorney General’s ‘list... °

An attempt is made to minimize this concession by the —

claim that the ref usal by an applicant to answer. committee

*The concession made, that. there is no ) adverse evidence with:

respect: to petitioner's political affiliations, points up the signifi¢ance

of the right of revolution inquiries. It is evident-that petitidner’s

views on revolution take on importance asthe committee implicitly

concedes it has no other basis for insisting on ‘asking ‘questions of

petitioner about the Communist Party or the Ku Klux Klan. (See

Note 22, as well as Committee's Point 3, App.. 17 and R. 171.)

It should be emphasized that the concession of the committee—

fhat no one had stated, orally or in writing, that petitioner had been

or was a member of any organization’ such as the Communist Party

~~ or the Ku Klux Klan-—refers to an applicant who had: been. before

the committee on and off diring a decade of excitement and sus-

picions His case has been publicized throughout the State of Illinois,

as well as nationally, and his name, and photograph have been pub-

lished’ thgoughout the State. (E.g., Chicago Daily News, September

_ 23, 1954; Daily Southern Hlinoisan, Herrin, Iinois, September -23,

1954; February 14, 1960). And yet, no one has supplied any ad-

verse information to the committee about petitioner. F

+Furthermore, the conmittee and members thereof have made .-in-

de pendent inquiries into these matters among prominent citizens in

petitioner's home town- (Carterville, Illinois); amiong petitioner’s

law, school- teac hers and classmates; and among LaSalle Street law-

vers who know petitioner well. (R. 60-61; Appendix: to | Petitioner’s]

1989 Brief, yp. 10-13). See, especially, petitioner’s letters to the

committee of “April 16, 1959 and March 27, 1958, asking: that the-

results of these inquiries be entered upon the record. The refusal

of the committee to acknowledge what it considers fruitless inquiries ,

is itself an aggravation of the due process irregularities in this case.

Thus, the concession of the committee is one that is made even

more significant by the circumstances of this case and by several un-

successful efforts of the committee to turn-something up. Further

inquiries could have been made with the aid of the subpoena powers

the committee possesses (Rule 10)—but then, the committee knows

as well as any reasonable reader if the record that the issue in this

case is neither Communism nér the Ku Klux Klan. (The Rules of.

the Committee are set forth in the Record, in petitioner's Appendix

to the 1959 Brief, 7-9.) ° i oT

“4

members’ questions about these organizations constitutes

- obstruction of the committee’s efforts to determine that

applicant’s character and fitness, a claim which’ is not

supported however by reference to aly rule. or statute or

by reference-to anything in‘ the record that has been made

in this case, Even though obstruction and ‘‘recalcitrance’’ .

are suggested (App., 27, 53), it is convenient for. ihe Illinois

~ authorities to say. nothing of the questions about religious

beliefs. which the recalcitrant petitioner resisted and ob-

structed for six weeks and which the committee ruled out

of consideration only after the member pressing the ques-_

_tions made the tactical error of relying for support on a .

- bizarre 1856 case that had long been overruled. (R. 144,.

210, 231, 292, 270-287, 301-313).

“The evidence with respect to petitioner’s character and

fitness is admitted by all parties to be favorable, except

for the significance of his. views on the right of revolution

and the significance of his refusal on principle to answer

‘questions about any political affiliations and associations.

The significance of all the evidence for chargctérand fit-

‘ ness purposes is presented with great care by Mr. Justice

Bristow in his dissenting opinion, and is evaluated also

by Justices Schaefer and Davis in their dissenting opinion

as well as by the committee minority. (App., 53, 78, 28).

‘ The position of petitioner is set forth in considerable de-

tail throughout the recor@and is’presented by him in. a

comprehensive manner in “his Closing Argument before .

the Committee on Character gnd Fitness. (R. 361-418)..

5, How the Federal Questions Are Presented. The fed-

eral questions sought to be reviewed were raised by pe-

titioner’s pleadings, objections and briefs at each stage

of the proceedings. Thus, at the outset of his Supple-

mentary Petition for Rehearing of June 25, “1957, he says, ~

I should like to emphasize, lest I be thought to waive

them, the claims heretofore made to rights guaranteed

by. the First and the Fourteenth Ae

15 =

‘to freedom of speech, of the press, of assembly, and to

due process of law and the equal protection of the

laws, all of which rights seem to me to be infringed

or abridged unconstitutionally ‘by my. continued ex-

clusion from. tue bar.

A detailed application of federal constitutional principles

to fhis matter may be found in the Transcript at, among

other places, R. 33, 38-39, 42, 43, 65, 92-97, 99-103, 106,

"119-122, 154-157, 172-173, 185, 190, 191-201, 382- 401. - The

briefs and petition for rehearing filed in the court below

also invoke these principles. Finally, both the court be-

low and its éommittee in their opinions and reports ad-

dressed themselves to. and passed upon various <fuestions:

raised under the Constitution of the United States. In

short, ‘there can be no doubt that federal questions were

timely and .propérly raised so as to g give this Court juris-

diction to review. the judgment i in this ease on writ of |

certiorari. 7 |

Reasons for —_ the Writ. rai

1. Is is well to emphasize at the outset that the ques-

dion of membership in the Communist Party or in the

: Ku Klux Klan is not an issue in this case, but at most

only thé effect of a conscientious refusal to answer ‘in-

quiries about such membership when it is conceded that

there is no allegation or evidence of membership, when

the j inquiries occur only in the context of badgering about

philosophical and political views, particularly views about

the right of revolution, and when silence is couched.in the

form of a refusal to submit to,something deemed by -pe-.

titioner to be in the nature of a test oath and to be im-

proper, ungentlemanly and unconstitutional. inquiries.

Many of the considerations that prompted this Court

to. review the Schware and Konigsberg cases, within a

year after declining to review tle 1954 opinion of the

Supreme Court of Illinois in petitioner’s case,** would seem

* Review of Konigsberg was granted again March 7, 1960. ~

Cae :

16 C4

to call for a review of this matter now. Some J these

considerations are elaborated in petitioner’s Jurisdiftional

Statement filed with this Court in — copies of which

are provided. ? — Be

2. Still, a. brief indication of some of these reagons for

granting the writ, and of additional reasons which are

peculiar to the: coon case, would seem in order. One

consideration which’ is novel to this matter is that. peti-

tioner has been subjected to the deprivation’: 4 has suf-

fered at the hands of the Illinois authorities partly be-

cause of the views he was required” to express about the

_- right of revolution. The expression of these views is at

the root of his trouble, both originally and, as is evident

_ in the transeript and the current hearings, to a ‘remarkable

_ _ extent even today. (App. 1, 14, 17, 40; R. 368-380). Thus,

even the 1957 rehearing ordér of the court below recog-

nized that (App., 7).- , | ”

The principal question’ ocoseuiie by the wititien for

rehearing concerns the significance of the applicant’s

views as to the overthrow of government by force in

the light of [the Kouigsberg and Yates cases].

To penalize petitioner for the expression of his opinions

on these matters, whether these perfectly proper opinions ,

are the primary reason or-only a contributory cause of

the action of the Illinois authorities, would seem to raise

segious probléms under the First and Fourteenth Amené

ments as these constitutional provisions are understood

by this Court.’ Furthermore, it* would seem a sufficient

® This Jurisdictional Statement is incorporated in the record of °

the current proceedings. (R. 384). The 1950-1955 phase of this con-

troversy is recorded at 3 Ill. 2d 471, 121 N.E. 2d 826; 348 U.S.

"946, 349 U.S. 908.

10 (R. 154-157; See Note 7). eon

11 Gitlow v. New York, 268 U.S. 652; Cantwell v. Connecticut,

310 U.S. 296, 303; West Virginia Board of Education v. fon

319 U. S. 624. (See Notes 16 and 24).

- 17

reason for review by an American Supreme Court “that

_ there is here_a case in which a decade-long exclusion from

th® bar has resulted from an applicant’s stubborn defense

of the principles of the Declaration of Independence.

eS Related to this reason for review is the fact that the

“Mlinois authorities have permitted themselves to be di-

verted from the duty prescribed by law, the duty: of pass-

. ing upon the character ‘anid fitness of Se cciasies for ad-

inission to. ‘the bar. 12

This is a long record, perhaps the longest ever made

in aul lllinois-bar admission proceeding. 8. It is appropriate ©

that one of the dissenting opinions opens with tae"wepert |

(App., 78). i

As a result of the exhaustive — before the

Committee, we now have far more information as ‘to

- the moral quality, the legal capacity and the political

views of this applicant than is ordinarily the case. —

Thus, this is not simply a case of a refusal, amounting

to obstruction of -the judicial process, to comply with the

known, necessary or accepted requirements of bar admis-.

sion proceedings. In fact, many requirements and in-

quiries have been newly-devised for this applicant.

Furthermore, the alleged obstruction—the refusal on prin-

\ ciple to answer questions’ about political affiliations—came

very early - in®the current preceeding. Indeed, the com-

mittee aiid the court below knew even before the rehearing

2 Six members of the committee conclude their minority report,

“We now _know the applicant is. fit and of good character. On this

record, itis pure sophistry to hold that his refusals to answer have

prevented ‘yur determining his character and fitness. To deny admis-

sion under these circumstances would be a disservice to the Bar and

a violation. of the traditional concepts of fairness and due process.

To do so under, the shelter of burden of proof is a retreat to formal- -

ism we are unable to join.” (App., 33).

18 Some applicants are deemed by the committee ‘to have Soe

sufficiently “tested” for their character and fitness for bar admission

purposes in appearances that last on!y five minutes before a a

committee of two members. (R. 257). %

O 18

was ordered that petitioner would maintain his former

position aud refuse to answer questions of a certain kind."

Moreover, the 1957 rehearing order issued by the court

below implicitly excludes questions about political affilia-

tions.’

Almost’ two: dozen heirs were snout by petitioner i in his

_ six appearances before the full conimittee. This’ fact alone

_ suggests that the committee: was interested in more than ~

petitioner’s refusal to answer political questions. It is ©

‘hardly fair then for the committee to, claim now that the

_ refusal to answer certain questions about political affilia-

tions should be sufficient to disqualify an applicant. One

must wonder what the ‘purpose of the four months of

hearings was and why it took a year, after. the close of

the hearings, beforé the committee could decide that noth-

ing mattered after page 34 of the 400-page transcript. (See |

14 Petitioner’s Suppleinéntary Petition for Rehearing, June 25,

1957; App., 1, 5.

15 The committee recognized that. this order (App., 7 ) was con-

troHing and therefore tried to fit its affiliations inquiries into one or

another of the three categories permitted and ordered by the court.

(1959 Brief for the Applicant, 3-5; ¢.g., R. 32, 76-77, 100, 173, 219;

re 17-18; Note 3, above. See, also, Kalven- Steffen amici brief,

This order of tie: court is the nearest petitioner has conie to

securing anything like a pleading, showing him what the case is about

and what to expect. (Petitioner made several requests for, advance

‘notice of’ what would be inquired into during his four months of

appearances before the full committee, especially after it became. evi-

dent that the limits set by the court below were not to be respected

by the committee. The committee repeatedly refused to give such

notice. ye ¢.g., petitioner’s letters of March 3, 1958, March 27,

- 1958, and April 15, 1958 (and the committee response of April 16,

1958), all of which are in the Record.)

Neither the committee report nor the opinion of the court below

addresses itself to the complaint of petitioner that the affiliations in-

quiries were outside the scope of inquiry laid down by the 1957 order

of the court below. This refusal to abide by carefully designated

limits—by “the law of, the case’—reinforces the due process -—_

ments made by petitioner. In addition; no serious attempt is

. to apply such standards as “character and fitness” in their no

and traditional sense.

> 49

aera?

Note 18, below.) It would seem, f6 be in the interest of

this Court fo réview such disregard of ordinary judicial

practice, especially since the ‘state courts control the en- _

trance into the bar of this Court.’*

4. The force of these considerations is augmented when

one dssesses the character and fitness e¥idence in this

‘record. There are the very favorable character references

and affidavits collected pursuant to committee rules and on

committee forms, No further comment on these apprdisals

, of petitioner is necessary except for the suggestion that

they be studied. Nor is there in the record anything ad- —

verse to petitioner’s ‘‘character and fitness’’, aside from ~

the possible significance of his long-standing refusal to

answer certain. questions.” .

16 Petitioner made an unsuccessful attempt to secure admission

directly to the bar of this Court after he failed to secure review of .

his case in 1955. 349 U.S. 903. -(See, also, Note 24.) . Petitioner

respectfully suggests that this Court reconsider in the light of sub-

sequent developments in his case its 1955 decision denying his Mo-

tion for Leave to’ File an Application for Admsision to the Bar of

the Supreme Court of the United States. It should be noted, in this

. connection, that petitioner, before pressing for appellate review on :

‘ this occasion, unsuccessfully explored possibilities for an. honorable .

settlement of this controversy “out of court.” (App., 81-82).

‘The outcome of this litigation bears not only upon pctitioner’s

right to practice the profession, for which he has beén trained but

also, as a practical matter, upon his prospects as a university and

law school teacher. (R. 249-253). ‘Petitioner, who-is writing a PhD

dissertation (tentatively entitled, Notes on the First Amendment),

is presently serving as Lecturer’ in the Liberal Arts and Research

Associate in University College, The University of Chicago.

Even if it should now be shown that petitioner is a member of

either the Communist Party or the Ku Klux Klan, such membership

should not on this record, and in. the light of all the other evidence

be enough to counter the overwhelming effect’ of the record in pe-

titioner’s favur (assumiing, for this purpose, even the committee’s

Klan opinion about the Communist Party and about the Ku Klux.

an).

_The question still remains, that is, whether a known member of

either the Conimunist Party or the Ku Klux Klan can and should

be excluded on that ground alone. ‘ Certainly, the Attorney General’s

“list” often: relied on in these ‘proceedings has not been either de-

signed or tested for bar admission purposes.

~ | oe

at about thé- unanswered questions? The committee

was driven to admit it had‘ nogevidenee linking petitioner.

with any of the organizations about which he hag refused

to speak. (Trariscript, 265), No one has explained why

any of the unanswered questions make any difference in

petitioner’s case, even though these are questions of the

kind that should require even niore rigorous justification

than would the questions that the eommittee might ordi:

narily ask."* The concession of the}eommittee that it has

no adverse evidence points up the element of protest in‘

petitioner’s refusal and hence the problem of freedom of

* KY speech raised by his — from the bar.”

18 The one “stibversive” political organization question for. which

an attempt to lay a foundation: was made came from Commissioner

Bane in an incident which is described by Mr. Justice Bristow’ as

follows: “At the very first session, applicant was asked whether he

was a member of any nationality ofganization. After he replied

that he was not, he was asked whether he was a’*member of a

[Greek] nationality organization that had been designated by the

Attorney General as subversive. Applicant refused to answer, ex-

plaining that when the question designated the organization as sub-

versive, its intent was to elicit information about political affiliations.

To such inquiry he must object on the ground that it infringed his

rights under the first and fourteenth amendments, was beyond ‘the

- province of a: Character and Fitness Committee, and, more particu-

larly, was outside the terms of the Supreme Court [of Illinois] re-

hearing order of 1957. He pointed out that if the committee was’

interestéd in elicitingNigformation, it already had the answer to

the question, since he. had just stated that he’was not a mentber

of any nationality organization.” (App., 56). . wees :

A “foundation” had been laid for this inquiry by establishing ‘first

that petitioner was of Greek descent! (R. 33).. The question whether

he was a member of this organization was the first‘ political question

petitioner refused to answer during the ctirrent proceedings. (R.

34-41). Presumably, the committee’s investigation was irretrievably

+ “obstructed” from then on through page 420. It-is submitted that.

this_episode, which reflects anything but fair play, is really symboli¢

st all,the affiliations inquiries in this case. And yet the committer

can suggest that petitioner’s principled refusals to answer such ques-

-tions interfere with,a proper determination of his character and fit-

ness. Everyday notions of due process, of how judicial bodies should

’ regulate themselves, aré. sufficient to condemn behavior: of this: kind.

See petitioner’s 1959 Brief in the Supreme Court of Illinois, 8-12.

19 See petitioner’s 1955 Jurisdictional Statement, Supreme Court

of the United States, 28-33. ; ae

ee at —

5. There never has been a rulé or statute in Illinois

providing that an applicant ‘must. answer all questions

put to him by character committee members. Neither the

committee nor the court. claims otherwise.” A study of

the record indicates why Illingis dares not establish such

a rule; there are,too many impulsive members on every

character committee, with the result that there are several

“questions petitioner refused to answer which the court be- |

low and its committee would prefer to ignore (such as the

.** During the course of petitioner’s.examination by the conunittee,

the chairman of the committee, at every point*where the significance -

of a refusal to answer questions was discussed, conceded implicitly

or ‘explicitly that such a refusal was but one piece of evidence to be °

evaluated as part of the record. (R. 37, 116-117, 142, 269-270, 337-

33&).. A careful examination discloses.that there is not in the record

any warning that a refusal to answer a particular question would be.

sufficient grounds for exclusion. Sitch a warning (based on a rule

or statute) would have to be given in order-to avoid the holding of

the Konigsberg case, 353 U.S. 253, at 261. If, however, the warning

referred to in the Konigsberg opinion is considered to have been

given petitioner, then this Court is faced with the problems that were

set aside as unnecessary to reach in the: Konigsberg case, the “far

reaching and complex questions relating to freedom of speech, press-

and assembly.” (One of the most puzzling aspects of this case is

seen in the contmittee argument that an.exchange of letters between

committee and petitioner in September 1958 deprives petitioner “of

"any benefit from the decision in. the Konigsberg case.” (App., 20).

These letters are set forth in the Appendix to the' 1959 Brief for .

the Applicant, 14-19. The authors of this passage in the’ committee

report must have relied on a mistaken recollection of what. these two

letters contain. Not the least curious aspect of the committee ma-

jority report is the remarkable suggestion that an applicant who dis-

agrees with the committee majority in interpreting or applying the

‘opinions of this Court is thereby to ‘be considered of ‘dubious char- |

mag ee 27. See Note 23.) (See,.also, on “warning,” R. 3, 5-6,

ad -) * , 55, e

The references to the Konigsberg case should not conceal the fact

that in certain essential respects petitioner's case is more like the

Schware case: the role of the unanswered questions is minimized if

not virtually ruled out by thé admissions made by the committee

and the striking impression that remains is the fefusal of the com-

mittee to give due weight to the “dictates of ‘reason” and to the

overwhelming character of the evidence in the light of thé “character

and finess” purpose of the committee. (353 U.S. 232, at 249).

questions about membership in the Republican and Demo-

‘eratic Parties, about petitioner's religious beliefs, and even °

about membership in the Ku Klux Klan and the Silver

Shirts of America.” :

These unanswéred <pestions are passed over- without

a e e* . . . pi

mention in reports and@ opinions, while those about the

~ Communist’ Party. are emphasized.* In fact, it was left

--21]t should be noted that every commissioner who insisted in the

course of the procéedings upon any question on whatever subject—

upon any question which petitioner refused to answer—voted against

petitioner’ at the end of. the proceedings (even after the committee

chose either not to mention his particular question in its report or

to rule it out of its consideration.}. An applicant can say “No”, and

perhaps the committee may agree that he did so properly; but the

thwarted commissioner can also say “No” when the votes dre cast—

and only this Court is left to say wlhiether he may propefly do so .

in the face of a record which is overwhelmingly favorable to an.

applicant. . . ‘ .

*2 But, it might now be argued, the Illinois authorities do not

insist that an applic8nt must answer cvery question asked him;

rather, they insist only upon thuse questions which, after extended

reflection and long deliberation, the character committee decides the

applicant should have answered. Even if one overlooks the diffi-/

culty faced by an applicant who must predict which questions the

committee might later vote to take seriously, the problem remains,

Why should these specially deSignated questions be singled out, as

distinguished frum the 6thers? Is -it. because-of the evidence the

committee has, or because of petitioner’s' views on the right ol

revolution ? , . . . : ;

With respect to the first of these two possible explanations, it

should be pointed out that there is no less evidence in the record

of membership in the Ku Klux Klan, for example, than, there is

of membership in the Communist Party. And yet the unanswered

question about the Communist Party, not that about the Ku Klux

Klan, is emphasized. That leaves, as a possible explanation for this

_distinction among questions and as a justification for the insistence

upon the Communist Party question, only petitioner's views on the

right of revolution (and the Declaration of Independence). But

here the [llinois authorities draw back and in effect say, We need give

no reasons why we insist upon certain unanswered questions

ignore other unanswered questions, or why we insist upon them 0

this applicant and only of this applicant; after all, we are responsi-

ble for the quality of the Illinois bar while the Constitution can look °

out for itself; besides, the Russian Communists are terrible people.

! . 7

‘

to Mr. Justice Bristow in his dissenting opinion to notice

‘all the unanswered questions and to point out that, very

far from adverse evidence, petitioner’s refugal to answer

improper questions may .be quite favorable evidence in-

deed for character and _— purposes. (App. +» 08, 74, 77-

78). +

6. The cardinal judicial sin committed both by the

court below and its committee.is the refusal to approach

- and evaluate the record as a court should and would do

in the usual ‘case. This refusal to take die account of |

an exhaustive examination conducted under the direction

of the court below, as well as the refu insist upon

a proper foundation for political quesqjfis and upon a -

g, Showing of relevance and pertinence for Political inquiries

—all these departures from sound judicial practice raise

serious questions under the due process and equal protec-

tion clauses of the Fourteenth Amendment. On ‘the other

hand, the insistence upon the political inquiries found in

_this case, and the continued exclusion of petitioner for a

refusal to answer such inquiries in this context, raise seri-

ous freedom of speech questions under the First and

Fourteenth Amendments,

These are questions that should bear upon the decision

whether a review of the case is appropriate, Reinforcing

these considerations is the likelihood of a marked injustice

in this matter, one that cannot but continue to have serious

consequences for the independence. and -integrity of the’

bar. : -

7. Perhaps it is unfashionable these days to urge as -

still another reason for granting review the suggestion

that the Illinois authorities have- cavalierly refased- to

apply the >_most_relevant law of the law—the rulings -of

Dit

. "294

this, Court in the Schware and Konigsberg cases.** It is

appropriate that petitioner, who has been unjustly attacked

as a threat to constitutional government because of his

carefully qualified views .on the right of revolution and -

the Declaration of Independence, should be subjected to

judicial action that amounts to a ‘deliberate refusal by

Illinois. to abide by the rule of law: petitioner can claim

what the Illinois bar authorities cannot, that he has al-

ways obeyed the law of the land and the decrees of ju-

dicial tribunals. .

23 (353 .U.S. 232, 252). Atiempts have been made to avoid the

ruling-in these cases by reliance upon the Beilan and Lerner cases; -

357 U.S. 399, 468. But the Beilan‘and Lerner situations seem clearly bs

distinguishable from bar admission matters. For Beilan and Lerner

do no more than apply a public émployees doctrine that had been

long established by cases such as Adler v. Board of Education, 32 .

U.s. 485, and Garner v. Los Angeles Board, 341 U.S. 716, when the

bar admission cases of Schware and Konigsberg were decided. Betlan

and Lerner deal with situations where, partly because of the statutes

involved, a refusal to answer questions was regarded as ipso facto

disqualifying for. public employment. A refusal to answer consti-

tuted incompetency,. afid even substantial obstruction; a warning

‘to this effect was clearly given by the state authorities; and the

record is primarily devoted to this warning. In* addition, these two

cases deal with situations in which evidence of the proscribed aiffilia-

tions was in the record. © eu

These distinctions are pointed out in petitioner’s letter to the

committee, September 23, 1958, which is fountl-in the Appendix to

the 1959 Brief of the Applicant, 15-19, as well as in the 1959 Brief

of the Applicant, 14-15. (See Note 20, above.) See, also, Kalven-

Steffen amici brief, 8-13, which includes the observation,. “In view

of the Committee’s own handling of the Beilan and Lerner prece-

dents, it adds a note of irony to the record that the majority made s0 °

much of Anastaplo's intransigence in failing to capitulate to theif

reading of the two cases.” .

Similar distinctions apply to the use of the Barenblatt case by, the

“court below. See, ¢.g., Mr. Justice Bristow’s dissenting opinion

*(App., 66-68, 74):

“ } | ue

_ 8. These would seem to be reasons enough for review-

ing this case.** Petitioner has developed his constitutional :

arguments at considerable length and with great care in

the hearings before the committee and in the various briefs

he has filed which are part of the record. Analyses of the

evidence and additional arguments aré found in the dis-

senting ‘epinions of members of both the court below and = *-

its committee and in the amici brief. of Professors Kalven

and Steffen. ae

Indeed, it would seem that there are enough reasons

not only for granting’ the writ of certiorari but even for

‘a summary judgment,.on the: basis of the preliminary

papers and the record, reversing the judgment below and

ordering the Illinois authorities to provide for petitioner’s

admission to the bar, thereby sparing him the expense and

*4In addition to the application of other constitutional limitations

upon state action, does not this Court have the power and obligation

to examine uie methods employed in the state courts which supply

the bar of this Court and to correct state action which excludes an

applicant who is qualified to ‘practice both in his state and before

this Court? Such a power would seem to rest in the paramount

judicial body in the United States and would be comparable to

Congressional power :to evaluate and correct State electoral require-

ments. Although the Congressional power is derived from an explicit

constitutional provision, it provides a model for-a Court that has

never hesitated to enforce implied prohibitions against the burdening

by states of “federal instrumentalities. McCullough v. Maryland, 4

Wheat: 316 (1819). Of.céurse, the power of states to admit is not,

“while this Court sits,” the power to deprive this Court of counsel.

But this state power, if not’ examined scrupulously both for ‘un-

wisdom as well as unreasonableness by this Court in situations where

departures from usual and. accepted practices are evident, is the

power to rang, age wd the quality of the bar of the Supreme

Court of the United States as well as of the subordinate federal

courts which are more limited in self-protection. The assertion of

any latent power to examine ‘state bar admission policies and prac-

tices would be particularly appropriate in an era when scholarly r

search and judicial action seem to be limiting the scape of a,€,

accepted constitutional limitations upon governmental , action: ey’ j

¢ ee

effort of further litigation.2® Such decisive action would

help to correct the abuses that have developed the. past

decade in bar admission practices throughout the nation.

It is fitting to clos® with an emphasis upon the record .

made in this case, especially since that record ‘has been

neglected thus far by the court below and its committee,

The best substitute for the record is Mr. Justice Bristow’s

dissenting opinion. In addition, the Closing Argument by

George Anastaplo before the Committee on Character and.

“ Fitness provides for the curious an account of what pe-

titioner has been doing and why.” :

For the foregoing reasons, relating to both the common ;

good and individual rights, it is requested that ¢he- Court

grant this petition for a writ of certiorari and otherwise

provide that justice finally be done in this matter.

Respectfully submitted, |

GEORGE: ANASTAPLO,; Petitioner,

Counsel pro se. ~

Chicago, “Illinois

' March 18, 1960

25 All expenses connected with this controversy have been borne

throughout by petitioner. © .

Opies of the docuggents. referred to here—including the

belbw, the opinions of the court below and of its committee, and |

the amici brief—are provided in sufficient quantity for this Court.

In addition, nine sets of the. most critical part of the record (that

is, the entire transcript of petitioner's six appearances before the

committee in 1958) are provided in the form prepared for the use

of the court below, a form-which may. be even easier to read thas

a printed version. would be. (The Secretary of the Committee oa

Character and Fitness has kiffdly provided petitioner these sets.)

26 (R, 361-418). This Closing Argument of May 26, 1958 fas

‘been reprinted in its entirety in Volume 19, Number 4, of The

Lawyers Guild Review, copies of which are provided for the com

venience of the Court. :

INDEX TO APPENDIX. TO. PETITION. FOR A

~~ WRIT OF CERTIORARI.

‘ a PAGE

1. Orders of. the Committee on Character and Fit-

hess in 1957 (before a rehearing was ordered by

the Supreme Court of Illinois) Haines ‘Fe -~ =

Order of June 12, 1957 denying rehearing ie hers 1

- Order of July 2, 1957 denying rehearing ....... wie

* "Dissent of Commissioner Rothschild.............. | 2

‘Dissent of Commissioner Sawyier................- , -«

II. Order of the Suprcine Court. of Tlinois providing |

for a Rehearing, September 17, 1957...............--:. 7

Ill. Reports of the Committee on Character and Fit- -

ness, April 9, 1909... eeeeecseeeceneeeenecseatennneennnneeen 8

Majority Report .2 Z eae alone rs ele. 5 2

Minority Report ...........000:....-... onveses 28

_IV. Opinions of the Supreme Court of Illinois, 18 Ill.

2d 182, November 19, 1959, January 21, 1960...... 34

Per Curiam opinion................ a . 34

Dissenting opinion of Mr. Justice Bristow... 53

Dissenting opinion of Mr. ‘Justice Schaefer

and Mr. Justice Davis.............-.-.cc-0teereseee 78

V. Letter of Committee: Secretary, ae 11,

1960,. in response to Petitioner’ s letter of Feb-

ie I cau alecntipreviinipntnitaiehieve-cterinenttiamebioniiiineensniishtintens 81

“VI. Constitutional Provisions and Statutes Involved 82

‘

ORDERS OF THE COMMITTEE ON CHARACTER.

AND\ FITNESS IN 1957.

> June 12, 1957

It is ordered that the \ petition’ for rehearing of George

Anastaplo, applicant, be and the same is hereby denied,

without prejudice, however, to applicant to file an amended ‘-

or supplemental petition for rehearing with the committee

within 15 days from the day hereof, such amended or sup-

a plemental petition to include, among other things, addi- |

tional information. forthe committee in the; following

. 2 e j

areas :—

(a): Applicant’ s willingness to answer questions hereto-

fore asked (but not answered) in the prior proceed-

ings, which questions were deemed pertinent and

proper by the Illinois Supreme Court (In re Anas-

taplo, 3 Ill. 2d 471) ; , :

(b) Applicant’s views with respect to the overthrow of

geversmient by force. |

-————L

| July 2, 1957

This cause coming on to be heard on the sworn supple-

mentary petition for rehearing and discussion having taken

place by the Commissioners and

~ The commissioners having before them the original rec-

ord, the origina] petition for rehearing and supplementary

petition of applicant, and it appearing to the Commission-

ers that except as supplemented to date by insignificant

¢ i .

: ~~

. £ ! *.

a) | The Committee on Charaeter and Fitness

facts pertaining to applicant’s life, the matter is virtually

in the same posture as it appeared before the Illinois

Supreme Court, and the Committee is of the-epinio’ it has

no alternative but to deny the said petition.

Now therefore, it ordered that the same supplementary

petition of applicant be and the same is hereby dénied on

the authority of In Re Anastaplo, 3 Til. 2d 471.

Dissent of Edward I. Rothschild; a Member of

the Committee, to the Action of the Committee

Denying Applicant’s Petition for Rehearing.

On July 2, 1957, the Committee on Character and Fit-

ness for the First Appellate Court District denied the peti-

tion of George Anastaplo for rehearing on his application

- for certification for a license to practice law in Illinois.

In refusing to consider the matters raised by the petition,

the Committee, in my opinion, failed to discharge its proper

function ‘and its duty to the Supreme Court of Illinois.

Because of the public nature of the matter, I note my dis-

agreement with this action and my reasons therefor.

- ¢ George Anastaplo graduated from the University of

Chicago Law School, passed the Bar Examination, and

first applied to this Committee in October of. 1950. His

record appeared to be satisfactory and he submitted the

usual affirmative evidence of good. character and moral fit

ness. :

In the course of several hearings’ balers this Committee

in 1950 and. 1951, two serious problems appeared to the ©

Committee. First, the applicant refused fo answer ques

tions as to whether or not he was a member of the Com-

munist Party. And, cecond, he expressed certain beliefs

in the right of revolution.

1957 Dissenting Opinions . a oe

With respect to the first problem, that of refusing to an-

swer questions, the applicant explained on several occa-

sions that he did not think they were proper questions for -

this Committee. A unanimous Committee, and subsequent-

ly the Supreme Court of Illinois, disagreed with this view;

- thoih neither expressed any doubt of the applicant’s sin-

cerity in his position. In this connection, it should be noted

-that neither at the time of its original action in 1951, nor

at this time, does the Committee have any substantial evi-

dence or suggestion of evidence that the applicant i is or

ever was a Communist.

With respect to applicant’s views ds to the > ign of

revolution, it seems to me, as it did at the time of our

original action, that the record in this case, fairly read,

‘indicates that applicant’s beliefs are philosophical and

abstract and deal solely with political theory and not with.

any movement or thought toward the violent overthrow of. |

the government by force. If this 1s ‘so, these beliefs do

not constitute grounds for denying applicant a certificate

and cast no doubt in my mind_.as to applicant’s good faith

in his.oath to uphold the State and Federal Constitutions.

(This Committee in its report of its original. action in

1951, based its denial of a certificate solely on applicant’s —

refusal to answer questions which the Committee consid-

_ ered relevant to its inquiry. ~The Committee reached no

conclusion with respect to applicant’s views on violent

overthrow and stated that these views were not the basis

. Of its action:

‘The Committee reached no conclusion as to whether

the applicant’s views-were purely - philosophical and

‘academic or whether they were also a basis for con-

duct or action, however deferred.” Report of the Com-

“mittee (on original PPR), p. 15. :

acres The Committee on Character and Fitness

The Supreme Court of Illinois held that the Communist

questions should have been answered and denied appli-

cant’s application for a license, In re Anastaplo, 3 Iil. 2d

471, 121 N.E. 2d 826 (1954), noting that the Corifmittee had _

not redched a conclusion as tq applicant’s views on rev:

olution. - Certiorari was denied, 348-U.S. 946.

On May 6, 1957, the Supreme Court of the United States

™degided Konigsberg v. The State Bar of California and the

Committee of Bar Examiners, ........ US. 0-4 25.U.S. Law”

. Week 428t-- There, an applicant for admission to practice “f

law i in California refused to answer_the same kind of ques-

tions about Communism and for the-same kind of reasons.

The Supreme Court of the United States held that on the

record in that case California could not constitutionally

deny him a license to practice law. ,

Konigsberg differs from the Anastaplo. situation in two —

respects. First, there was substantial independeitt evi- |

dence of Communist Party, membership by Konigsberg, «

whereas-there is none as to Anastaplo. If Califorjia could.

not question Konigsberg about Communist Party member- -

ship, despite such independent evidence, I do nat see how

we can iif the absence of any such evidence, unless

Anastaplo’s thoughts on revolution permit us to do so.

The second distinction between the Konigsberg case and

Anastaplo presents a more Oiffeu! t problem and one whieh |

this Committee, in my opinion, ha< a dyiy to consider. That

is the problem of, Anastaplo’s belief in the right of rev olu-

‘ tion. In Konigsberg, the applicant ~taied categorically that

he did not believe in the“overthrow of ihe government by

force and apparently this satisfied tiie Supreme Court of

the United States. “Anastaplo, on the- other hand, states

that he does believe in the right of revolution and the us

of Seeee, |

The euutina~end in my opinion the sole question—

which. must be determined, is whether Anastaplo’s beliefs

. keep liim outside the shelter of Konigsberg. This ques-

tion is a question of fact upon which this Committee should

either reach a conclusiom on the old record and the current

petition for rehearing, ‘or, if it is unable to do so, it should

hear further from the applicant on this one issue which

_ Was expressly reserved in the prior consideration of this .

applicant.

The issue is brought clearly into focus by the decision

-of the Supreme Court of the United States in Yates, et al.

v. United States,......... USS, ......... 24 U.S. Law Week 4475,

decided on June 17, 1957. . In Yates, the Court distinguished

between: advocating and : teaching. forcible overthrow of ~

government as an absttact principle, and efforts to in-

stigate’action to that end. Yates, of course, deals with the

Smith Act and the distinctions there made in the narrow

interpretation of a criminal statute are not necessarily con-

trolling here. But to the extent in point, Yates is authority’

for Anastaplo’s espousal of abstract doctrine, if in fact that |

is all there is to his views. i

As I read: the petition for rehearing, Anastaplo is say-

ing, in effect, ‘I haye done nothing more than Konigsberg

did in refusing to.answer questions, and my political phil-.

osophy is no different than Yates!’”- If in fact his view S.

’ are no different than Yates’,? I see no basis either for re-

quiring answers to the Communist questions or for denying -

'Nor have Anastaplo’s views been ‘tailored to meet Konigsberg

and Yates. The petition for rehearing contains nothing substantial -

that was not expressed in the original hearings, 6 or 7 yours prior

to Kénigsherg and Yates. - , ”

?In my opinion they are less “revolutionary.” than Yates’ as. Yates’

are described by the Supreme Court of the United States.

6 The Committee on Character and Fitness

. ' , 1957 Dissenting Opinions

Anastaplo a license. But we cannot determine this by

denying the petition for rehearing and’ not even.consider-

‘ing the question. © “- 3

I realize that ours is a limited function and that ‘the

ultimate accommodation of the opinions of the Supreme

Court of the United States in Konigsberg and Yates and

the action of the Illinois Supreme Court*in Anastaplo is

for those courts and not for us. But I.see no reason to

_refuse to perform our limited function.

I would grant the petition for rehearing, take evidence

on (1) applicant’s activities during the period since the .

denial of his original application, (2) his present reputa-

tion, and (3) his views on overthrow of the government

by force. It may be that: whatever conclusions we might

reach on these three subjects, we would-be bound to deny —

a certificate on the basis of In re Anastaplo. But at least .

we world have made the factual inquiry and given the

Supreme. Court of Illinois the benefit of our consideration

of these matters, so that it would be in a position to dis-

pose of the questions raised by this application. We would

do no.less in the case-of any other applicant.

Commissioner Sawyier also dissents from the action of -

the Committee in denying Applicant’s petition for rehear-

ing, on the ground that the applicant should be permitted

the opportunity, if he so desires, to make a record specifical-

ly in the light of such new considerations as he may deen _

_ have come into play by reason of decisions of the United

States Supreme Court-rendered: since applicant was last :

examined.

—_

° _ . 7

Tl.

. ORDER OF THE SUPREME COURT OF ILLINOIS,

SEPTEMBER 17, 1957.

“The Court entered the following order:

N.R. 780 In re George Anastaplo

In 1951 the Committee on on and Fitness for the

‘First Appellate Court District denied the application of.

George Anastaplo for admission to the bar of Illinois.

This Court affirmed the action of the Committee, (In re

Anastaplo, ‘3 Ik. 2d 471) and the Supreme Court of the

United States denied Gertiorari. (848 U.S. 946)

Subsequently the applicant filed with the Committee a

. petition for rehearing on the basis of certain decisions of

the Supyeme Court of the United States. The Committee

denied this petition. |

The principal question presented by the petition for re-

hearing concerns the sigiiifvance of the applicant’s views

as to the overthrow of government by force in the light of

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

Yates-v, U. S., 1 L. ed. 1356, 77 S. Ct. 1064. Additional

questions presented concern the applicant's activities. since

his original. application was denied, and: his une reputa-

tion.

We are of the opinion that the Committee. should have

allowed the petition for rehearing and heard evidence on

these matters, and the Committee is requested to do so, and

to report the evidence and its conclusions.

g°

Il.

REPORTS OF THE COMMITTEE CHARACTER

- AND FITNESS, APRIL 19,1959. | |

[Masority Report].

On June 5, 1951, the applicant, GEORGE ANASTAPLO, Was

notified by this Committee that on the basis of hearings: —

conducted prior to that, date he had failed to prove such

qualifications as to character and general fitness asgin the |

opinion of the Committee would justify his admission to

the bar of Illinois,

‘The applicant mail from,this raling t to the Supreme

Court of Illinois, seeking a reversal of this Committee's

action. In. -proceedings entitled ‘‘In re Anastaplo,’’ 3 I.

2d 471 (1954), ‘the. Supreme Court of this State denied

applicant’s petition. The applicant then appealed to the

Supreme Court of the United States, which court, treating

the appeal as a petition for writ of certiorari, denied _

certiorart, 348 U.S. 946. | , ee .

In its opinion the Supreme Court of Illinois held, based

upon American Communications Association y. Douds, 339

U.S. 382, 94 L. ed. 925, 70 S. Ct.-674. Dennis v. U. S., 341

U.S. 494, 95 L. ed. 1137, 71 S. Ct: 857, and Re Summers,

325 U.S. 561, 89 Li. ed. 1795, 65S. Ct.’ 1307, that certain

inquiries directed to applic ant hy this Committee concern-

ing applicant’s | political affiliations and organizational

memberships did not violate either the First or Fourteenth

Amendment to the Constitution of the United States. (3 Ill.

- 2d at pp. 480-481.) In reaching this conclusion, our Su,

preme Court set forth the ‘‘established conspiratorial

nature’’ of the Communist Party. on the one hand and the

position of great influence of attorneys in the community

on the other, and its genuine doubt whether a Communist

1959 Majority Report 2 a 9

Party member could in good conscience take the oath re-

quired as a condition of admission to practice. (3 Ill. 2d

at p. 480.) From these: ‘premises it concluded:

“- ‘Under any hypotliesis, therefore, questions as to

membership in the Communist Party or known sub-

versive ‘front’ organizations were relevant tothe

Yaquiry into petitioner's fitness for adinission to the

bar. H¥® refusal to answer has prevyentedsthe com-

- _ mittee from inquiring fully into his general fitness and

good citizenship and justifies their refusal to issue a

certificate.’’ (3 Ill. 2d at p: 480).

Finally, our Supreme ‘Court held that an applicant—

knowing that the right to practice law is conditioned upon

proof of his good moral character, of his general fitness to

practice law and of his good citizenship, and upon the tak-

‘ing of an oath to support the Illinois and Federal Constitu-

tions—may not defeat ‘*pertinent inquiry into his ability

to fulfill such conditions by any claim of thé right of. free ~~

speech.’’ (3 Tl. 2d at p. 482. ) In this connection it analo-

gized the principles applied in the field of public employ- ~

rh and held that the ‘application for admission to the

3ar constituted an agreement ‘‘to waive his constitutional

right-of free speech against relevant Anquiry. .* «3 Ba

-at pp. 482-483.) The opinion conclhided :.

“We conclude that the committee’s inquiry into peti- .

tioner’s membership in the Communist Party was

relevant to a determination of his good citizenship and

his ability to take the oath of lawyer in good con- .

science, and that petitioner’s constitutional rights were

not inftinged upon by such action. On the present

record the petition must be denied:’’ (3 Ill. 2d at 483.) |

On-June 25, 1957, following the decisions of the Supreme

Court of the United States in Konigsberg v. State Bar of —

California, 353 U.S. 252; 1 L. ed. 2d 810, 77S. Ct. 722,

Schware vy. Board of Bar Examiners of State of New.

; |

,10 The Committee on Character and Fitness

Mexico, 353 U.S. 232, 1 L. ed. 2d 796, 77 S. Ct. 752, -

Yates v. United States, 354 U S. 298, 1 L. ed. 2d 1356, 77

S. Ct. 1064, Anastaplo applied to this C ommittee by ak

mentary petition for rehearing of his application for ad-

mission to the Bar. On vay ‘2, 1957, the Committee denied

the application. . .

On September 17, 1957, thé: Supreme Court of Illinois

entered the followi ing order: .

‘In 1951 the Committee ‘on Character and Fitness

for the First Appellate Court District denied. the ap

plication of George Anastaplo for admission to the bar -

of Illinois. This Court affirmed the action of the Com-

mittee (In re Anastaplo, 3 Ill. 2d 471.) and the Su

preme Court of the United States denied certiorari.

(348 U.S. 946.)

_ “Subsequently the applicant filed with the Commit-_

tee a petition for rehearing on the basis of certain

decisions of the Supreme Court of the United States.

‘The Committee denied this petition.

‘‘The principal question presented by the petition *

for rehearing concerns the significance of the appli-.

cant’s views as to the overthrow of government by _

force in the light of Kontgsberg v. State Bar of Calv

_ fornia. 353 U.S. 252 and Yates v. U. S., 1 L. ed. 1356,

é 77S. Ct. 1064. Additional questions presented concern

. the applicant’s activities since his original application

was denied, and his present reputation.

‘*We are of the opinion that the Committee should

have allowed the petition for’ rehearing and heard

evidence on these matters, and: the Committee is re-

quested to do so, and to report the evidence and oa

conclusions.’’

On October 17, 1957, at the request of ‘the Cominittee,

acting pursuant to the Court’ s direction that he be granted

a rehearing, applicant filed his responses to the customary”

questionnaire which the Committee requires be answered

by all candidates for the Bar. In responding, to the ques:

1959 Majority Report | i ae

tionnaire, applicant; for the most part, supplied informa- -

tion to the Committee which supplemented the answers

which were given to a previous questionnaire filed with the

Conunittee on October 26, 1930 The Committee has also

received the usual attorneys’ affidavits and character affi-

davits from persons familiar with the applicant and has

had communications from various-individuals whose names

were given as ref erences by the applicant and who ‘supplied

information concerning. Anastapio’s mortal character and

general fitness to practice as an attorney,

een

Ve wegen —

Thereafter, this Committee conducted hearings on Feb-

ruary 28, 192 3,° March 21, 1958, April 7, 1958, April 23,

1958 and May 19, 1958. Applicant appeared personally and

vave.oral testimony: which, including argument, agrregates

420" pages in the record. In addition, the applicant has

submitted to. the Committee varidis law review articles,

newspaper reprints aiid vitier. exhibits and has addressed

- several letter communications té the Committee which

appear in the record. During the hearings the C dmmittee ;

repeatedly reminded applicant that he had the right to be

represented by- counsel aud io call’ witnesses, but he has

pre ‘ferred.to rest his case on his own te: timony and advo-

cay, (R.°3, 55.) 0. , 6 ;

Since applicant's original application was denied, he

ids been engaged principally in the academic life as an

instructor ‘and research assistant at the University of Chi-

cago. From the character affidavits and reference lettérs

which have been submitted to us, it would appear that the

. applicant is well regarded by. his academic associates, by

professors who had taught him in school and by members

of the Bar-who know him personally. We have not, been

supplied with any information by any third: party which .

is derogatory to Anastaplo’s character or general reputa-_

tion. We have received no information from any outside

. y Seek e .

12. it The Committee on Character and Fitness

source which would cast any aed on applicant’ s loyalty

or which would ‘tend to connect him in any manner with

any subversive grou’. 7 ;

We have interrogated applicant at considerable length

concerning his belief in the right-to overthrow the gover: |

ment by force and violence. The applicant’s views are .

perhaps best summed up in his own words which appear

at p. 391 of the Record; |

- ** Alnrost everyone would ‘agree there are times when .

a government should 4e overthrown by force. Ulti-

mately; a citizen has to decide for himself when such .

a time ‘comes—when the principles of the Declaration

of Independence apply. The conscientious citizen re-

serves the right and duty to judge his government

even as he takes the oath to support not that govern:

ment but, the Constitution. In fact,-our Constitution

can be said t6 have this right implicit in it, a right

that protects the Constitution itself from subversior

by a government that may Pre constitutional only in

appearance. But, as | said when I first appeared be

fore the full. Committee on January 5, 1951, 1 do ‘not

_ think anyone would he sjustified at a time such as

this, when the normal processes of government per-

init reasonable and peaceful change; to participate in —

action leading to the overthrow of government. :

“The right of revolution, as I understand. it, is

something that probably all the members of the Com-

mittee on Character and Fitness and of: the*Supreme

Court.of Illinois believe in. The Committee’ must real-

ize that I would be no Jess reluctant than they to see

this right of revolution exercised except in the most

extreme circumstances. I trust that my position, and

what I have contributed tp its defence, indicate an.

abiding commitment to constitutional government.”’ ©

In explaining his view the applicant relied on excerpts:

from the. Declaration of Indepertdence and Lincoln’s in-

augural address in 1861, and —— from Thomas

“1959 Majority Report Paar 13

Aquinas and Daniel W ek (R. 158-159, 160, 390.) The

applicant in answer to specific questions stated that he.

believed that thé decision as to violent overthrow is es-

. sentially an individual one, but that the person making

the choice should take into account the gravity of the

provocation, the chance of his efforts succeeding, the gen-

eral harm that his. action may produce in the community, |

and whether his view is shared’ by any appreciable niimber

‘of people. (R. 161-162.) The. following .exchange at one

of the hearings sheds further light on the applicant’s views

“in this regard: | |

**(. It seems*to me, the subjective versus the ob-

jective standard-is quite important in connection with

the. questions we have been putting to you. If a group

of Communists believe fervently, passionately, in the

kind of system that is repugnant to us, if the standard

is purely. subjective, then they would have the right

to overthrow the government as quickly as they could,

> would they. not?

‘“\. No, that is not simply the question, I mean

—I de not ‘assume that any fool who decides the

Government sliould be overthrown has the right to do

so. I am not saymg any group of men, fools or not

fools,. simply hetause they decide to’ overthrow the

Government, haWe a right to do so. I am saying only

that under cerfain circumstances there is a right to

overthrow gov

‘Let me give you an example, a couple of examples,

of recent date, of two unsuccessful revolutions which

1 think refléct the general American opinion, I won’t

say neéessarily reflect mine, but the general Amerjcan

opinion. At the end of the war, toward the end. of

World War I, Hitler’s generals made an attempt to

overthrow him. You have all heard that. They were

unsuccessful. Two years ago the Hungarians made an -

attempt to overthrow the government: They were un-

successful. There is no doubt, I think, on the part of.

the general | American population, that both of these

14 ‘The Committee on Character and Fitness

attempts at revolution were legitimate i in the sense that .

there was no principle about the right of revolution

being violated here. The only problem that one would

have, I suppose, in the general opinion would be in

terms of the prudence, circumstances and consequences

of the particular situations. > (R. 166-167.)

The applicant ‘has further stated to the Committee that

he does not believe in the right to use force until peaceful .

means to redress an evil have been exhausted or appear

futile. In relating his views with respect to overthrow to

the political situation at the present tiine, applicant stated

that he did not foresee any condition developing where

revolution would be either desirable or valuable, (R. 170.)

A majority of the Committee has arrived at the conclu-

sior-that the views expressed by the applicant w ith respect

to the right to overthrow the government by force or

violence, while strongly libertarian and expressed with an

intensity. and fervor not necessarily shared by all good

citizens, are not inconsistent with those held by many

»patriotic Americans both at the present time and through-

out the course of this country’s history and do not in and

of themselves reveal any adherence to subversive doctrines.

In view of this conclusion there is no need to consider “in .

‘ this connection either Yates v. U. S., 354° U.S, 298, or

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

ever, the Konigsberg case. is necessarily considéred in

, «Tespect to the Committee’s authority. to ask certain ques

tions of applicant, infra, pp. 12-13.

Apart from applicant’s views as to the overthrow of the

Government by force, certain other views expressed by him

in these proceedings bear upon his attitude toward estab- |

lishedauthority and orderly governmental procedures. The

Committee regards these views as relevant to an inquiry

into the character and fitness’ of an applicant for adinis-

sion to the bar.

f /

1959 Majority Report. , 15

One such other matter was the applicant’s refusal to

deny that circumstances might exist under which he would.

resist by force Federal or State officials seeking to enforce

judgments or decrees in proceedings against him person-

ally which had become final after full review by the highest

court having jurisdiction. (R. 174-178, 237-240.) In his

language, ‘‘I would not care to say there might not be

instances where resistance to an officer of the law executing

such a mandate might not be improper.’’ (R. 176.) If

"admitted to the Bar and adv tsing a client, he testified that

he would not advise the client to resist by force or ‘other

similar means a final judgment or decree against the client,

hecause in his opinion-it was his.duty to advise the ‘client

only ‘with ‘respect to the legal system as it exists.’’ (R.

177.) ‘‘In so far as I am a lawyer, I can tell him what his

- rights are under the accepted law * * * under the Canons

of Ethies I would be derelict in my duty if I presume to .

do much more than that."’ (R. 239.) He denied that.

he was arrogating to himself rights or privileges which he

would deny to others as ‘‘citizens.”’ (R. 239-240.) He

testified that ‘‘If, however, he (the client) were thereupon

to approach me on some other basis, not as an attorney,

there may be other advice I ¥ould be willitig to give him.”?

(R. 240.) He saw no inconsigten¢y between such an opinion |

and the taking of an oath Joyally to support the Consti-

tutiow of the State of Ilineis and the Constitution of the

United States ‘‘without any reservation whatsoever.’’ (R.

238.) : _ ~

These views raise a serious question whether the atti-_

tude expressed by. applicant toward final court deter-

minations binding upon him and toward attempts to -en-

foree them in accordance with the law is consistent with

the oath required of attorneys in Illinois. Upon admis-

_ sion, an attorney is an officer of the courts, and one > who

16 The Committee on Character and Fitness

holds such views as the applicant's would fall within the

condemnation expressed by the United States Supreme —

Court in the opinion’ signed by all the Justices in Cooper

v. Aaron, 358 U.S. 1, 3 L. ed. 2d 5, and rendered on Sep-

tember 29, 1958: +

_ “No state legislator or executive or judicial officer can

war against the Constitution without violating his |

undertaking to mmgpert (358 U.S. at p. 8.)

The further attitude expressed by applicant about advis- .

ing others along thé same\subversive lines in his capacity

‘as ‘‘citizen’’ as distinguished from his capacity as ‘‘attor-

ney,’’ also raises serious questions concernin’ his capacity

_ to take the oath. required of Mlinois attorneys; Our Sv-

preme Court in In re Anastaplo, 3 Ill. 2d 471, at p.-479,

pointed out the importance of the fact in Bar application

eases that attorneys hold positions. of publie trust which

~ give them unique opportunities to impréss their views and

attitudes upon the, public. ft NS

Perhaps the major.’ ‘issue presented to the Committee

arose from the applicant’s continued refusal to answer

questions regarding possible Communist or other subver-

sive affiliations. (R. 34, 35-37, 42-43, 46-47, 64, 65,66, 94-97,

98-99, 105, 172-173, 336.) We felt justified in questioning

7 applicant on such matters for the following reasons:

1: His refusal to respond to such questions in connec-

_tion with his previous candidacy was undoubtedly the

controlling reason why his application was denied. by “he

Committee and was the pivotal point in the decision of the

Supreme Court of Illinois affirming the Committee’s action.

2. The Committee believes that its right to question the

applicant on -possible subversive affiliations has not’ been

foreclosed by the Konigsberg decision. (Konigsberg ¥.

State Bar of California, 353 U.S..252.) This view is clearly

1959 ee Report — ; I? 47

confirmed i the later decisions of the ‘Supreme Court of

the United States in Lerner v. Casey, 357 US. 468, 2 L..

ed, 2d 1423, 78 S. Ct. 1311, ‘and Beilan v. Board of Educa-

tion, 307 U.S. 399, 2 L. ed. 2d 1414, 78 S. Ct. 1317, both

of which expressly distinguished the Konigsberg case.

3. ‘The ,Committee was .convinced that the applicant’s

credibilty in connection with his answers to questions per-

taining ‘to the right of overthrow and the enforceability of

judicial Gecrees should be tested by questioning him about

possible subvérsive beliefs and activities.

4. The Committee believed that the applicant’s. ability

to take the eath in good faith as an attorney of this State

‘could be seridusly questioned if he were an active and dis-

ciplined member of the Communist Party, especially at this

juncture of ,history. (R. 115-116.) The Committee re- _

péatedly warned the applicant that questions regarding

Communist affiliation were viewed as important by the

Committee members and that his failure to respond to them

could adversely affect his application for admission to the

bar. (R. 37, 116-117.) The Committee further reminded -

appligant that Congress, the Supreme Court of the United |

States and various legislatures and courts had classified

the Communist Party as soniething separate and distinct

from other political parties, dnd that in several jurisdic-

tions the Party had been branded as a criminal conspiracy.

(R. 115-117.) The Committee further stated that it might

_ View a doctrinaire adherence to Communist goals as one

. thing, but active membership in the Party as quite another,

and pointed out that until the applicant gave a candid re-

_ sponse to the Committee’s questions it-could not formulate

any judgment on applicant’s basic loyalty. (R. 132.)

_ 5. The Committee was directed to report to the Court

on the applicant’s activities since his original application

was denied. The principal way in which the Committee

Ls)

18 - ‘The Committee on Character and Fituen’ |

ascertains the activities i in which ¢ a candidate has been en-

gaged is by asking him questions.

Notwithstanding the Yoregoing, the applicant persistent.

-‘ly refused to answer questions concerning Communist or

other subversive affiliations. To explain his refusal he

stated that such i inquiries violated fundamental civil rights

. guaranteed to him by the First and Fourteenth Amend- .

ments to the Federal Constitution and by the Constitution

_ of the State of Illinois. ‘He did not rely up6n any priv ilege |

against self-incrimination. He stated that his political

‘beliefs were not a: proper subject of inquiry by the Com-

mittee and bore no relevance to the ,question of his char-

acter and fitness.* He objected to any inquiry into such,

matters since the Committee, in his view, had laid no foun-

dation for such an inquiry and had no evidence before it ©

which would justify. what ‘he considered an intrusion ‘into -

his private beliefs; he did not consider that his views with

respect to overthrow of the government or disobedience of

judicial decrees forniahed any basis for any such questions.

(R. 139, 155-157, 173.)

The applicant relies heavily on the Konigsberg case. to

support his refusal to answer questions, concerning possible

subversive affiliations and activities. We read the Konigs-

berg case to hold that a committee performing funttions

similar fo our ownds not: éntitled to draw an.inference of

_bad moral character merely from tl applicant’s refusal to

answer questions concerning membership in the Communist

_Party if such refusal i is baacdl on a good-faith belief that the J

United States Constitution prohibited the type of inquiry

which the Committee was making and if thé reviewing court

can n ‘find nothing in the record which indicates that his -

* The applicant did not adopt this position at all stages of the

hearing. He freely. answered portions of the questionnaire dealing

with constitutional doctrine and expdtiated at eng on his belief

in violent overthrow. ;

1959 Majorit, y Report ea 19.

position was not taken in good faith.”’ (353: U.S. at p. 270. )

—The Court pointed out that the State Committee of Bar

Exaininers in “California had at no point intimate? to

Konigsberg that he would be barred from the pr’ .ession

just because he refused to answer relevant inquiries or

because he was obstructing the Committee. Jn the view of

the Court the” Committee’s action was based principally

upon inference whieh it drew from certain of applicayt’s

_. past utterances, prior membership in. the Communist Party

and refusal to answer questions bearing upon present mem-

bership'in the Party. (353 U.S. at p. 266.) The court held

that considering the record as a whole such inferences were

“hot permissible. The court expressly left-open the ques-

tion whether Konigsberg’ s constitutional objections to the

afommittee’ s questions were well founded and whether the

Committee would be justified in insisting that its questions

be answered. (353 USS. at p. 270.)

. The Konigsberg case is therefore not determinative’ in

this proceeding. The United States Supreme Court in-

holding in that case that a committee like ours is not en-

titled to draw an inference of bad moral character merely

from an applicant ’s refusal to answer quéstions concerning

menibership in the Comniunist Party, if such refusal is

based upon a good faith belief: that the United States Con--

stitution. prohibits the type of inquiry which the committee

_ was making and if the Court could find nothing in the record

‘to'indicate bad faith on his part (353 U.S. 252,270), did not

held that such a condition of a record affirmatively entitled

an applicant to certification. Upon determination of the

propriety of the quéstions and the lack of substance in

the objections thereto the applicant would be entitled to

‘anothér opportunity to answer, and if he persisted in his

‘refusal to do so, the-committee would not be acting incon-

sistently with Konigsberg in denying a certification.

‘

_ 1311, and Beilan v. Board of .Edacaiion of Philadelphia

- 397 U.S. 399, 2 L. ed. 2d 1414, 78 S. Ct. 1317, in which the

- Court clearly determined the propriety of questions 6f the

20 : ge The Committee on Character and’ Fitness

Since the rehearing was granted herein, the United States

Supreme Court decided on June 21, 1958, the vases of

Lerner v. Casey, 357 USS. 468; 2 L. ed. 2d 1423, 78 S. Ct.

’

kind asked the applicant in these proceedings. We called

applicapt’s attention to these two most recent decisions

and offered to him the opportunity to change his testimony

in any manner he saw fit in the 'ight of them. ( Committee _

letter to applicant dated September 16, 1958.) He declined. -

(Applicant’s letter to the Comfnittee dated September, 23,

1938.) His continued refusal to answer, evidenced by his

reply of September 23, 1958, deprives: him on this record

of any argument of similarity between his status and that

of Konigsbérg and of any benefits from the decision in the —

Konigsberg case. : | “

In Lerner veCasey, supra, petitioner, a subway conductor _—

- . in the’New York City, Transit System, was discharged by

his employer under the New York Security Risk Law on

the ground that his refusal, based upon the privilege

against self incrimination guaranteed by the Fifth Amend-

_ ment, to answer a question of his employer as to his mem-

. bership in the Communist Party, showed that he -was of

doubtful trust and reliability. Petitioner sued in the New

York State Court for reinstatement, attacking his dis

charge on various grounds,.including lack of due process.

The New York Supreme Court dismissed the suit and the

Appellate Division and Court of Appeals both affirmed.

On certiorari the United States Supreme Court also af-

firmed. Justice Harlan for the majority said:

‘*In other words, we read/the court’s opinion as mean-

ing that a finding of doubtful trust.and reliability could

justifiably be based on .appellant’s lack of frankness,

cf. Garner,v. Board of Public Works, 341 U.S. 716:

Beilan v. Board of Public Education, ante, p. 399, de-

—

men

1959 Majority Report ae a |

‘ cided today, just as if he had refused to give any other

information about himself which might be relevant to

his.employment. It was this lack of candor wuich pro-

vided the evidence of appellant’s doubtful trust and

__, Teliability which under the New York statutory scheme

constituted him a security risk. The Court of Appeals

went on to reason that had appellant refused, without

more, to answer the question, the finding of ‘doubtful

trust and reliability’ would have undoubtedly been

permissible, and that the basis for sucha finding, in

appellant's refusal to answer, was not destroyed: by ~

. the claim -of the Fifth. Amendment privilege because |

the Commissioner was not required to accept that

claim as an adequate. explanation of the refusal...

‘*Accepting as we do, these premises of the state

-vourt’s opinion, we find no constitutional block to its

decision sustaining appellant’s dismissal from employ-

t * 2 8

‘‘Nor, as the Court of Appeals stressed, was the

claim of possible self-inerimination made the basis for

‘an inference that appellant was a Communist and

therefore unreliable. Hence we are not faced here

with the- question whether party membership may

rationally be inferred from a refusal to answer a ques-

tion directed to present membership where the refusal

rests on the belief that an answer might incriminate,

‘cf. Adamson v. California, 332 U.S. 46, or with the

question whether membership in the Comnymist Party

which might be ‘innocent’ can be religd upon as a

ground for denial of state employment.* Cf. Wteman

v. Updegraff, supra; .Konigsberg v. State Bar of Cali-

fornia, 353 U.S. 252; Schware v. Board of Bar Ezam-

iners, 353 U.S.. 232. ; ‘

‘‘We think it scarcely debatable that had-there been

-no claim’ of Fifth Amendment privileg., New York

would have been constitutionally entitled to conclude

from appellant’s refusal to answer what must be con-

ceded to have been a question relevant to the purposes

of the statute and his employment, cf. Garner v. Board |

.of Public Works, supra, that-he was of doubtful trust

and reliability. Such_a conclusion is not ‘so strained

22 ' _ The Committee on Character and Fitness

as not to have a reasonable: relation to the circum. —

stances of life as we know them.’ Tot v. United States,

319 U.S. 463, 468.. This.Court pointed out in Garner

that a govegfment employ ee can be required upon pain

~of dismissal to respond fo i inquiry probing into matters

relevant to his employment, and that present member. ,

ship in the Communist Party is such a matter! . See

also Beilan v. Board of Public Education, supra. Cer-

tainly it is not a controlling constitutional distinction

that New York, rather than impose on employees, as

in Garner and Beilan, an absolute duty to respond to

_ permissible inquiry upon threat of dismissal for re-

fusal, ‘has imthese proceedings held that an employee ,

lacking in-candor to his governmental employer evi- ©

dences doubt. as to his trust and reliability.. Finally,

unlike the situation involved in. Konigsberg v. State

Bar of California, supra, there is here no problem of

inadequate notice as to the consequences of refusal to.

answer, for appellarit was specifically notified that con-

tinued refusal might lead to his’dismissal.’’ (See 301

U.S. at pp. 476,-477-8.) vg

In Beilan v. Board of Education of Philadelphia, supra, .

petitioner, a public school teacher, was discharged by the

~ local school board for ‘‘incompetency’’ under the Pennsyl-

_ vania School Code, because of his refusal, continued after

warning that failure to answer might lead to dismissal, t0

answer a question of his superintendent as to his memiber-

ship.in a ‘Communist political association. On an adminis-

trative appeal, the superintendent sustained the locil

Board, but the County Court set aside the discharge. . On

‘ appeal by the Board the Pennsy lvania Supreme Court re-

versed and réinstated the discharge. On certiorari the

_ United States Supreme Court affirmed. It held that due

process was.not violated by ‘petitioner’ s discharge on_ the

‘ground of ‘‘incompetency’’ evidenced by. petitioner's re

fusal to answer the request of the ‘superintendent for in-

“formation as to the teacher’s loyalty and as to his activi-

ties in certain sea organizations, such refusal being

ee,

1959 Majority Report a ie

based upon the Fifth Amendment oni other constitutional

" objections.

Justice Burton said: or

‘The only question before us is. whether the Federal

Constitution prohibits petitioner’s discharge for stat-

utory ‘incompetency’ based on his refasal to answer

. the Superintendent’ 8 questions. a

‘‘By engaging in teaching in the public schools, pe-

titioner did not give up his right to freedom of belief,

speech or association. Heé did, however, undertake

_ obligations of frankness, candor and cooperation in

answering inquiries made of him by his capryans

gschool teacher. * *.* :

.‘*The question asked of petitioner’ by his Superin-

tendent was relevant to the issue of petitioner’s fitness

and_suitability to serve as g teacher * ** He made it

clear that he would not answer any question of the

same type as the one asked. Petitioner blocked from.

the beginning any inquiry into his Communist activi-

ties, however, relevant to his present loyalty. ‘The

Board based its dismissal upon petitioner’s refusal to

_ answer any inquiry about his relevant activities—not ,

upon those activities themselves. It took care to ”

charge petitioner with incompetency, and not with dis- <:

‘lovalty. It found him insubordinate and lacking in.

" frankness and candor—it made~ no finding . as to his

wraky. * * *

“‘In the instant case, the Pennsylvania Supreme

Court has held that ‘incompetency’ includes petition-

‘er’s ‘deliberate and insubodinate refusal to answer ~

_ the questions of his administrative superior in a: vitally

important matter pertaining to-his fitness.’ 386 Pa.,

at 91, 125 A. 2d, at 331. This interpretation is not

“nconsistent with the Federal Constitution. * * °

‘‘Our recent decisions in Slochower v. Board of Edu-

cation, 350 U.S. 551, and Konigsberg v. State Bar of

California, 353 U.S. 252, are distinguishable. * * *

-. “In the Konigshérg casé, supra, at 259-261, this.

Court stressed the fact thdt the action of the ‘State

24 The Committee on Character and Fiteen

‘was not based on the mere refusal to answer relevant

questions—rather, it was based on inferences imper-

missibly drawn. from the refusal. In the instant case,

ho inferences at all were drawn from pétitioner’s re- .

fusal to answer. The Pennsylvania Supreme Court

merely equated refusal to answer the employing

Board’s relevant questions with statutory ‘incompe-

, tency’. ~ (357 U.S. at pp. 404-406, 408-409. )

In the instant case, as in Lerner atid Betlan, and unlike >

_ the situ&tion in Komigsberg, no problem exists as to inade-

. quate notice of. the-consequences of ‘a refusal to answer:-

the applicant was specifically notified both by the Hlinois _

Supreme Court in its opinion in 3 Ill. 2d ‘471, and by this

Committee on rehearing that his continued refusal to an-

‘swer might lead to the denial of his application. hive 37,

116-117.)

In the dourse of the rehearing proceedings, the Com-

- mittee condlueted no independent. investigation into appli-

cant’s character, reputation or activities. The Committee

- has no personnel_nor other resources for any such investi-

gation. For this very practical reason, the Committee has

traditionally asserted the view that it cannot be expected

to carry. the burden of establishing, by independent inves

tigation, whether or not an applicant possesses the requisite

character and fitness for admission to the ‘bar. It is rather

for the applicant to establish, on his own behalf, that he

possesses the necessary qualifications and it is for the Com-

mittee to test, by hearings and inquiry of the applicant,

the worth of the evidence which the applicant proffers.

- Because the applicant has refused to answer questions

we are unable to report whether his activities since: the

denial of his original application have included member-

ship, office holding or other activities in the various 0 |

ganizations listed on the Attorney General list of subver-

1959 Majority Report — a

sive organizations. We dre also unable to report what his

reputation is among the members of any organization with ;

which he may be affiliated, since he has declined to inform’

us-of his affiliations. _

In the-instant proceeding a niajority of the Committee

is of the opinion that applicant’s petition for a license

should be denied because he has failed'to meet the burden

which is on him of. establishing his.proper character and

fitness. By refusing to answer questions deemed by the

“ Committee to be relevant, he has thereby failed to estab-

‘lish that he has the,necessary character and fitness and

the Committee is therefore unable to certify him.

‘In this connection the Supreme Court in In re Anastaplo,

3 Ill. 2d 471, nar) (pp. 480, 483): ~

“Tt is our opinion, therefore, that a member of the

Communist Party may, because of such membership,

be unable truthfully and in good conscienve to take

the oath required as a condition for admission to

practice, and we hold that it is relevant to inquire of

‘an applicant as to his membership in that party. A

- negative answer to the question, if accepted as true,

would end the.inquiry on the point.’ If the truthful- |

ness of a negative answer were doubted, further

questions. and infoymation to test the veracity of the-

applicant would be proper. If an affirmative answer

were received, farther inquiry into the applicant’s

. innocence or knowledge as to the subversive nature

ofthe organization would be relevant. Under any

‘hypothesis, therefore, questions as to membership 1n

the Communist Party or known subversive ‘front’

organizations were relevant to the inquiry into peti-

tioner’s fitness for admission to the bar. His” refusal

to answer has prevented the committee from inquiring

fully into his general fitness and good citizenship and

- justifies their refusal to issue a certificate.

26 The Committee on Character and Fitness

“We conclude that the. committee’s inquiry ‘into

petitioner’s membership in.the Communist Party was

relevant to a determination of his good citizenship

and his ability to take the »ath-of lawyer ig good

conscience, and that petitioner’s constitutional rights

were not infringed upon by stich action.. On the

present record the petition must be denied.’’

A majority of the Committee continues to adhere to the

+ views whieh. were the basis of’ its decision on Anastaplo’s |

prior application and which were expressed by the Supreme

Court of. Illinois in In re Anastaplo, 3 Ill. 2d 47) at 480

483, to the effect that it may properly interrogate an

applicant as to membership in the Communist Party or in

any other subversive group and that such «inquiries are

relevant to character and fitness. It believes that an

applicant is not protected from such questions by any

provisions. of the State or Federal Constitutions. At

applicant, of course, need not answer the question and

cannot: be punished for his refusal to respond. But his

failure to reply, in our view, (i) obstructs the lawful

processes .of the Committee, (ii) prevents inquiry into

subjects which bear intimately upon the issue of character

and fitness, such as loyalty to-our basic institutions, belief

in- representative government and bona fides of the attor-

burden of establishing that he possesses the good moral

character and fitness to practice law, which are conditions

to the granting of a license to practice law.

We draw no inference of disloyalty or subyersion from

applicant’s continued refusal to answer questions concern-

ing Communist or other subversive affiliations.’ We 40,

however, hold that there is a strong public interest in aur

being free to question applicants for admission to the bar

on their adherence to our basic institutions and form o

government and that such public interest in the character

F-».

1959 Majbrity Report 3 “ - = 27

of its attorneys overrides an applicant’s private interest

in keeping such views to himself. By failing’ to respond

ty this higher public interest we hold that the applicant

-has obstructed)the proper functions of the Committee. By

reason of applicant's own recalcitrance he has failed to

demonstrate the good moral character and general fitness

to practice law necessary for .adritission to the Bar. .We

vannot certify the applicant as worthy of the trust and

confidence of the public when we do not know that, he is -

so worthy and when he has prevented us from finding out.

Certain members of the Committee (who are included

within the majority who believe that applicant’s. position

for a license should be denied because he has failed to meet

the burden which is on him of establishing his proper

character and fitness) are of the further opinion that the ~

record demonstrates affirmatively applicant’s lack of the

character-and fitness necessary for adniission to the Bar.

They base their views upon (i) applicant’s refusal, after _

the Lerner. and Beilan decisions-were called to his atten-

tion, to modify his refusal to answer the Committee’s ques-

tions concerning Communist Party /and other possible sub-

versive affiliations and (ii) applicant’s view that circum-

stances might exist under which he would not abide by, and.

might advise other citizens not to abide by, final decrees

of a court of law and to resist by force their enforcement

by appropriate legal process, when considered in eonnec-

tion with his views as to the overthrow of the government

ly force and violence.

7 is the conclusion of the Committee that the applica-

tion should’ be denied. °

Respectfully submitted,

CoMMITTEE ON’ CHARACTER AND FITNESS FOR

THE First APPELLATE Court District—oF

ILuuvo1s.

”

ee ee The Committee’ on Character and Fitness

| The following. members of the Committee join in the

foregoing’ report:

D. Roserr Tuomas, Chairman,

Cuar.Es A. Bane,

_Ricumonp M. Corset,

_. »Wauter H. Moses, —

Joun M. O’Connor, Jr.,

Francis J. SEIrER,

Len Youne Smrru,

- Ropert A. SpRECHER,

Epmunp A. SrTepHan,.

JEROME S. WEISS,

Horace A. Youna.

(Minority Report]

We cannot join in.the majority report.

The Supreme Court has asked’ us to hear otdenia on

. three questions: The Committee is apparently unanimous

in the conclusion that nothing in the answers to those.

three questions reflects adversely upon the applicant.. The

answers, as stated by the majority, are:

(1) ‘*The views expressed by the applicant with

_ respect to the right to overthrow. the government by

force or violence, while strongly libertarian and eX

pressed with an intensity and fervor not necessarily

shared hy all good: citizens, are not inconsistent with

those held by many patriotic Americans both \at the -

present time and throughout the -course of this

-country’s history and do not in and of themselves

‘ reveal any adherence to subversive doctrines.”’

(2) Since his original application was denied, he

j has. been. engaged primarily in academic life at the

' Qniversity of Chicago. |

1959 Migority Report — | a . 29

(3) He is ‘‘well regarded by academic associates,

by professors who * * * taught him in schgol*and by

members of the Bar who know him personally.”’

The majority nevertheless finds reasons to deny admis-

sion. This is not because of any evidence derogatory to

the applicant, for there is none. As the majority. states

and we agree: pret aa

‘*We have not beer: supplied with any information

by any third party which is derogatory to Anastaplo’s

character or general reputation. We have received

no information from any outside source which would

east any doubt on applicant’ s loyalty or which would

tend to connect him in any manner with any subver-

_ sive group.’ _

In the face of all of this, ww does the majority reach

its result? It does so solely because of applicant’s refusal

| to answer certain questions which are considered relevant,

and because the burden of proof is on the applicant. The

tact that the questions are relevant and the burden of proof

on the applicant, does not relieve us of the obligation of

considering the entire record and weighing all of the evi-

dence. It does not give us the right to seek reasons to

deny- admission or to find those, reasons in a, refusal to

answer under the circumstances of this case. tn consider-

ing the entire record, applicant’s refusal to answer is only

“ene factor. It must be analyzed against the entire record”

-and applicant’s reasons for his refusal, and n t used as

an excuse, without more, for denying admission.

The record in this case, fairly read, reveals nothing

reflecting adversely on applicant’s moral character or repu-

tation, or containing the slightest suggestion ‘of disloyalty.

This despite the fact that applicant has been before us at

various times for-sever and one-half years and has received

Considerable public attention.

* @

ol e The Committee on Character and Fitness

. The- actual, limited, ‘extent of a refusal to an-

‘swer should be made clear. Applicant has answered ‘fully

-all questions, including those phy his politieatl be-

liefs, except only such questions as were of such a specific

‘nature and intent ag—in the very ,angw ecamte

~ to reveal adherence or non-adherence to or membership or

non-membership iii a particular, identifiable organiz d po-

litical’ or religious group. |

On this record, applicant’s refusals can have significance

nly if they have made it impossible for us to determine ’

‘ "the questions before us or have evidenced such a disrepect

for this Committee, the Court and the community as to:

reflect on his character. Neither is thé case here. His

refusals have made it more difficult'for us to discharge our

~-duty, but they have not prevented us from doing so or

relieved us of that duty.

The applicant did not set out to frustrate the work of

the Committee by refusing both to answer and td explain

. the reasons for his refusal. Instead, he willingly gave us -

his. views and was subjected to a most searching inquiry’

into his reasons which he explained repeatedly and in

detail. His offense, as the majority sees it,-is that he

believes as a matter’ of principle, that we cannot constite-

tionally ask the questions he has refused to answer. He

believes: further that it is important that he refuse to

- answer. And he has adhered to these beliefs at a cost |

to date of seven and one-half years of his professional life.

The worst that can be said about applicant in this regard

is that he may. -be wrong in his beliefs or in carryipg them

as far as he does.. That some of us do not agree with the

* applicant and others would not be: as’ persistent in our

‘ devotion to principle is of no relevance or significance.

Nonconformity, if any there be, and devotion to principle

: 28

dq not reflect adversely on character and are strange

grounds for denying admission.. a

- . . 2 4 . . . x te. .

We ‘believe that the applicant is sincere and conscien-

: these beliefs’ in no way makes his unfit, immoral or of

bad character. Honest error or’ unorthodoxy in political

philosophy is not a ground for denial of a license to prac-

tice law. : , Qi.

When all is said and done, ti jority denies admission

because the applicant disagreed with the ‘Committee by

refusing to answer and in so doing, made the Committee’s

work more difficult. This is not a valid ground. We are

not Bie sagas and agreement with us is not and should not

he a’sine qua non to admission. And although the appli-

“cant’s ee made our task more difficult and time con-

suming, it did not prevent us from accomplishing it. We

are here for the hard cases and an applicant who presents

a hard case should not be-punished for doing so, particu-

| larly where the difficulty arises frer the applicant’s ad-

herertee to conscientious scruples as to the meaning of the

4 Constitution. : ;

. The majority finds support for its decision in'an excur-

‘ion into applicant’s attitude toward possible future court

orders affecting him, his clients or his friends. Apart

from the,fact that this goes beyond matters we were

directed to examine we find nothing in these philosophic

observations’ whiek- reflects adversely upon applicant’s

tharacter or fitness, as“We understood those terms.

We do not agree that’ because the applicant did not

enlarge on his views as to the effect of later cases on the

Konigsberg decision of the Supreme Court of: the United

States, this in any way detracts from the controlling im;

portance of that case ‘on this one, or, as is suggested,

‘

‘tious in his beliefs, and that his ‘refusal to compromise «

a The Committeg on Character“and Fitness

sade the applicant of the right to rely : on that decision:

It is still the law of the land; and despite all distinctions

- that may; be made, the fact -is that: there was far more.

basis for the questions put to ‘Konigsberg than those put —

. to the applicant here. In Konigsberg, there was inde-

* pendent evidence .of prior Communist .membership and

’ involvement. Here there is- absolutely nothing.. Yet in

Konigsberg the applicant was upheld in. his refusal to

answer questions of the kind involved here. —

In any event, assuming we have a right to ask such ques-

tions as applicant has refused to answer,.we need not ”

insist upon obtaining an anwer in response to our exercise

of that right in a case where we have no foundation what-

soever for asking such questions except a desire to vindi-

cate the status of the Committee. This is not an adversary

_ proceeding where we sit to see, above all else, to the strict

enforcement of our ‘rights’? as ee: the. applicants

required to come before us. | e

It seems contrary to the proper ‘purpose and spirit of

this Committee to ‘insist upon an inflexible rule that a

-refusal of an-applicant to answer any quesfion deemed

lawful and relevant by the Committee automatically, and

without more, forecloses the applicant ‘from the favorable '

disposition. of the Committee. It is, rather, our function,

when faced with an applicant who shows some independ-

ence of ‘spirit and thought, to display the same humanity,

tolerance and comriion sense with which we pass upon the

applications” ‘of all the hundreds of other more /tractable

applicants whom we continue to certify through the years.

_ : Accordingly, our’ function is fulfilled in- such cases when

____we see ,fo it. that an applicant who refuses to answer any

_ relevant question has produced the same strong evidence

as has this applicant of his good reputation and activities

and has convinced the Committee, after hearings, that his

refusal to answer is equally made with complete candor -

“and in good faith and is not arbitrary, devious, or made

for ulterior or irrational reasons. :

In our view, the applicant has discharged the burden of

proof that he has the requisite character and fitness. We

know him well from protracted hearings and over-exposure

tohis view. He has demonstrated that he is a moral and

patriotic American and that.his views on the right of revo-

lation are without significance. He is well thought of in’

the community and discharges important respensibilities.

Despite the physical burdens of long hearings, applicant

conducted himself in a’ gentlemanly manner and was tem-

perate even in his criticism, particularly if, as he feels,

he has been wronged by the Committee. |

We now know the applicant is fit and of good character. |

On this record, it is pure sophistry to hold that his refusals

to answer have prevented. our determining his character

and fitness. To deny admission under these circumstances |

would be a disservice to the Bar and a violation of the

‘traditional concepts of fairness and due process. To do

so under the shelter of burden of proof is a retreat to

formalism we are unable to join -

Our conelusion is that the applicant should be granted

‘ foregoing report: Pie

a James P. Carey, Jn.

J. R. Curistiayson,

eo! James E. Hastincs, cae

Georce N. Leicuten,

_ The following’ member's of _the Committee join in the .

i % At

‘Epwarp I. Rorasgumn, - fee.

Oinvar P. Sawing ae ga

1959 Minority Report at a . ; | ; 33

: nois.

e \ . . 34

a: eles

OPINIONS OF THE SUPREME COURT OF ILLINOIS,

1959-1960 (AS SET FORTH IN ILLINOIS OFFICIAL

REPORTER ADVANCE SHEETS, 18 Il. 24 182),

In re George Anastaplo, Petitioner. ¢

Opinions filed November 18, 1959—Rehearing denied ’ Jan. .

uary 21,1960. | :

Bristow, Schaefer, and Davis, JJ., dissenting.

- Petition and Appeal from refusal of Committee on

Character and Fitness to grant certificate.

George Anastaplo, of Chicago, petitioner, pro se.

Harry Kalven, Jr. and Roscoe y Steffen, both of Chi-

cago, amicr curiae. ; >

°PER CurmaM: The present proceeding is a sequel to

In re Anastaplo; 3- Ill. 2d 471. George Anastaplo passed the.

Illinois bar examination given in August of 1950. There-

after, following extended hearings before the Committee .

on Character and Fitness for the First Appellate Court

District; the committee, on June 6, 1951, advised Anasta-

plo that he had. failed to prove such qualifications as to

character and general fitness as, in the opinion of the .

committee, would justify his admission to the bar of Tih

Anastaplo filed in this court a ‘‘ Petition and appeai-from

the refusal of the Committee on Character and Fitness

* * * to sign a favorable certificate ‘for admission to

| 1959 Majority Opinion — ~ - . : 35

the practice. of law for the applicant and. Motion to the _

Supreme Court of Illinois to provide for the admission of

_ the applicant to thespractice of law in the state of Illinois.’’

For the reason that-Anastaplo charged that the: commit-

tee abused its discretion and that certain of his constitu:

tional rights were infringed upon, we found that circum-

stances existed which should cause the matter to be set

down for argument and opinion. (In re Summers, 325

U.S. 561, 80 L. ed. 1795, 65 S. Ct. 1307.) -The-matter was

taken upon the record of the hearings before the Commit-

_ tee on Character and. Fitness, the report of the commit.’

tee, Anastaplo’s brief gnd oral argument, briefs of two

amici curiae and the. suggestions of a one-time member

of the committee in his behalf. ‘on ee

The crux. of the earlier’ controvérsy centered upon.

‘Anastaplo’s refusal - answer, inquiries as to whether he

was a member of the Communist Party or of any sub-

versive organizations in a list compiled by the United —

States Department of Justice. When initially interrogated

as to whether he was a member of the Communist Party

' Anastaplo answered that the question was an inquiry into -

his political beliefs and ‘an ‘‘illegitimate question’”’, He

made: like responses to similar questions in other parts of

the record. Based upone these refusals, the committee,

upon the basis of its opinion that a member of the Com.

ing of Anastaplo brought out his opinion that a member

of the Communist Party, otherwise qualified, should be

tthing contradictory or incompatible between adherence

0 tenets of that party and the taking of the attorney’s

munist Party, because of such membership, might not be -

able in good faith to take the oath of attorney to support —

the Federal and State constitutions,’ thereupon directed:

uestions to Anastaplo to elicit his views in what the com- .

nittee deemed were"pertinent areas of inquiry.. Question-

‘dmitted to the practice of law and that he would see .

236 = \ ‘The Supreme Court of Illinois "

oath to support the constitutions. Anastaplo expressed his

- ——belief-in-the doctrine of revolution_and_the overthrow-of

. government by force of arms, saying that he, would em

brace such doctrine if he could not agree with the existing

government, or found it unsatisfactory, and felt that force

_ of arms was the only means to attain the end desired. He

also stated that such view would not be altered even

though the existing government provided for peaceful and

orderly means of change.’ In its report denying Anastaplo

a certificater the committee stated that the views and

opinions expressed by Anastaplo on these matters were

not the basis of its decision, but that such views increased

the importance of his refusal to answer and made more

necessary, a complete answer upon the subject of member- °

ship in the Communist Party, so that the committee could ,

better-determine the ability of Anastaplo to take, the oath

of attorney in good conscience and his good ‘citizenship.

In his appeal to this court, Anastaplo contended that

‘ the committee abused its discretion and exceeded its fune- .

tion. by ‘inquiring into what he described as his ‘‘ political

‘views,’’ directly or indirectly. We rejected this contention ,

‘and held that the committee’s inquiry into Anastaplo’s

membership in the Communist Party was relevant to a de-

termination of his good citizenship and: ‘his ability to take

the oath of a lawyer in good conscience, and that his con-

stitutional rights were not infringed upon. . Accordingly,

we concluded that ‘‘On the present record the petition must

be denied.’’ Anastaplo appealed. to the United States Su-

_ preme Court, which treated the appeal as a petition for

_ writ of certiorari, and denied the petition. (In re Anastaplo _

. 348 U.S; 946, 99 L. ed. 740.}. The Supreme Court of the

_ United States also. dénied Anastaplo ’s motion for admis —

_ sion to the bar of that court in 349 US. 903, (1955), wee

ed. 1240.

1959 Majority Opinion | 37

Upon the authority ‘of Dennis ¥-- United States,-341 3

S494, 95 L. ed. 1137, Anierican Communications Ass’n,

C.1.0..v. -Douds, 339 U.S. 382, 94 L. ed. 925, and In re

* Summers, 325 U.S. 561, we held that inquiries to applicant

by the committee concerning his membership in the Com-

munist Party did not violate either the first or the four-

teenth amendment to the Federal constitution,

- On June 25, 1957, subsequent to the decisions of the

United States Supreme Court in Konigsberg v. State Bar

Of California, 353 U.S. 252, 1 L. ed. 2d 819,77 S. Ct.

122, Schware vy. Board of Bar Examiners, 353 U:S. 232,

1 L. ed. 2d 796, and Yates v. United States, 354 U.S. 298,

IL. ed. 2d 1356, 77 S. Ct. 1064, Anastaplo filed with the

Committee on Character and Fitness a supplementary peti- |

tio for rehearing of his application for admission to the

bar. On July 2, 1957, the committee denied the petition. °

Thereafter on September 17, 1957, we entered the following

order ; ' is

“Tn 1951 the Committée on Character and Fitness for

the First"A ppellate Court District denied the application of

George Anastaplo for admission to the bar of Illinois.

This Court affirmed the action of the Committee, (In re .

dnastaplo, 3 Ill. 2a 471,) and the Supreme Court of the |

United States denied certiorari. (348 U.S, 946.)

“Subsequently tle applicant filed -with the Committee a

petition for rehearing on the basis of certain decisions of

the Supreme Court of the United States. The Committee

denied this petition. cal

-“The principal question presented by the petition for

rehearing concerns the significance of the applicant’s views

as to the overthrow of government by force in the light of

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

’ Fates v. United’ States, 1 L. ed. 1356, 77 S. Ct. 1064.

™

—-Kdditional questions presented-concern the applicant’s ac-

388° The Supreme Court-of Minois

tivities since his original application was denied, — his |

present reputation.

“We are of the opinion. that the Committee should have

allowed the petition for rehearing and heard evidence on

‘these matters, and the Committee is requested to do - $

and to report the-evidence_ and its-conclusions. "

~Inobedience to the directions of this court, thie com-

‘mittee. requested Anastaplo to file the questionnaire re-.

quired by the committee of all applicants for admission to

‘the bar. Anastaplo’s answers, in large’ measure, supple-

mented: the answers given to the, -questionnaire filed with .

the committee on October 26, 1950. Anastaplo also sup-

plied attorney’S affidavits and character affidavits’ from

persons acquainted with him. In addition, the committee -

received communications from various individuals whose

names were given as, character references by Anastaplo

‘and who furnished information concerning Anastaplo’s

moral character and general fitness to practice as an at-

torney.

The committee conducted five extended hearings, com-

mencing February 28, 1958, and ending May 19, 1958. .

Anastaplo testified and argued at great lenth, as evidenced

by approximately 420 pages of the record covering his oral

— and argument. The record also contains law re-

_ view articles, newspaper reprints, other exhibits, and let-

ters from Anastaplo addressed to the committee. During _

_ the progress of the hearings, the committee epeatedly ad-

vised Anastaplo that he enjoyed the right’to be. repre-

sented by counsel and to call witnesses. He elected to

submit his application solely upon his own testimony and

argument.

1959 Ma jasity Opin ion } 39

s : f

During the interval between denial of his original appli-

cation and‘the submission of his-.second application, Anas-

taplo had been employedgthe greater part of the time as .

an instructor and resear@® assistant at the University of —

Chicago. The. character affidavits and letters of reference

__—supplied by Anastaplo disclose that he is well regarded by

his académie associates, by profe ssors who taught him in

school and by lawyers who are personally. acquainted with |

him.. The committee says that it has not been supplied -

with any information by any third party which is derog-

atory to Anastaplo’s character or general reputation, and

that it has .received no information from any outside

‘source which would cast any doubt on Anastaplo’s loyal-

ty or which would tend to connect him in any manner wiih

any subversive group. The committee further advises us

that it has conducted Oo independent investigation into

Anastaplo’s character, reputation or activities. For the °

tery practical reason that the committee has no personnel

or other resources for any such investigation, the commit-

~ tee states that it has traditionally asserted the view that

' it cannot be expected to carry the burden of establishing

by independent inv estigation, whether an applicant, pos-

sesses the requisite character and fitness for adinission to

_the har and that a duty devolves upon the “applicant to:

establish that he possesses the necessary qualifications and

that it is then the duty of the committee to test, by hear- |

ings and questioning of the applicant, the worth of the evi-

dence which he proffers. We-agree, and have held that

the diseretion exercised by the Committee on Character

and Fitness will not. ordinarily be reviewed. In re Frank,

293 Til. 263. |

| The conimittes: conducted an extensive inquiry into An-

astaplo’s belief in the right to oyerthrow the government

_by force-and vieletice. His testitmony in this regard does. cs

40 - * . The Supreme Court of Minors

not. require narration since a majority of the committee

concluded that while the views expressed by Anastaplo,

while strongly. libertarian and expressed with an intensity

‘and fervor not necessarily shared by all good citizens, are

not inconsistent with those held by many patriotic Amer-

icans both at the present time and throughout the course -

reveal any adherence’ to subversive doctrines. Accordingly,

the committee quite properly decided that although, in the’

light of the quoted conélusion, there was no need to con-

sider in this connection either Yates v. United States, 354

U.S. 298, or Konigsberg v..State Bar of California, 353.

U.S. 252, the Konigsberg case necessarily required con-

sideration, with respect to committee’s’ authority to

ask Anastaplo questions concerning Communist or other

subversive | affiliations and activities. ae

The committee regarded Anastaplo’ S. views bearing upon

his attitude toward established authority and orderly gov-

ernmental procedures as relevant to an inquiry into his

character and fitness for admission to the bar. First,.

Anastaplo declined to deny that circumstances might exist

under which he would resist by force Federal or State of-

ficers seeking to enforce judgments or. decrees ‘in proceed-

ings against hith personally which had_ become final after

full review by the highest court having jurisdiction. Anas-. -

taplo testified : ‘I Would not care to say there might not-be .

instances where resistance to an officer of the law exécuting

such a mandate might not be improper.”’ He testified, fur-

ther, that if admitted to practice and advising a client, he .

would not advise the client to resist by force or other sim--

because, in his opinion, it was his duty to advise the client

_ only ‘‘with respect to the legal system as it exists. In-s0®

far as I am a la af, I can tel] him what his rights are

under the accepted law * * * under the Canons. of

-—_

1959 Majority Opinion ie ig . } 41

a 2 :

Fthies I would be derelict in 1 my “dhs if I presume td

much more thani that.’? Although disclaiming- e was

arrogating to himself rights or privleges which he. would ~

deny to others as ‘‘citizens,”’ he testified that ‘‘If, however, —

he [the ¢lient] were thereupon to approach me on some

‘other basis, not as an attorney, there may be other advice

I would be willing to give him.’’ Anastaplo asserted that

"he saw no inconsistency between such an opinion and the

taking of an oath to support the: Federal and Staie consti-

tutions ‘‘ without any’ reservations whatsoever.”

~The foregoing: views, according to the committee’s re-

port, raise. a serious question whether the attitude .ex-

pressed by Anastaplo toward final court’ determinations

binding upon himself and toward attempts to enforce them

‘conformably to the law is consistent with the oath required, - -

of attorneys in this State. An attorney, is an officer of the

courts. (In re Day, 181 Ill: 73.) In Cooper v. Aaron, 358

US. 1, 3 L. ed. -2d 5,: the United ‘States Supreme Court

said, at page 8: “No state legislator. or executive or judi-

dial officer’ can -war against the Constitution without .Vio-

lating his undertaking to support it. f

. The committee’ s report also suggests that Anastaplo’s —

.. attitude with respect to advising others along the same sub-

versive lines in: his capacity as, ‘‘citizen’’ in contradis-

‘tinction to his capacity as ‘‘attorney’’ raises additional

serious questions concerning his capacity to take the oath :

required. of attorneys in this State. See: In re a. ;

3 IL 2d 471, at page 479.

<The major issue presented to the committee arose from

_, the applicant? s continued refusal-to answer questions re-

garding possible Communist or. other subversive affilia-

tions. In our first opinion in this case, we said in 3 Th.’

2d 471, at page 478:

- 7

42 ; The Supreme Court of Illinois

‘Neither. the committee nor this court, faced with the

question of whether membership in the Communist Party

isrelevant to a determination of -petitioner’s good citizen”

ship and his ability.to take the oath of lawyer in’good con-

science, need be oblivious to the existence of that party and

its established conspiratorial nature, nor to the view in

‘ which it is held by the people of this country. Aside from

the fact that niembership in an organization advocating the

forceful overthrow of gur government would give rise-to °

questions concerning the sincerity of an applicant’s oath’

of loyalty, it is proper'to consider that the lawyer, as an

officer of the court, holds a position of public trust,-or at

least of semipublic trust. * * * While technically not a

‘governmental -employee, a lawyer meets 6n common ground, .

with one so employed, in that loyalty to the constitution is

- an inalienable condition to their. service. In either case;

Communist Party: membership or communst activity is -

totally incompatible with such loyalty. |

‘<Tt is our opinion, therefore, that a member of the Com-

‘munist Party may, because of such membership, be unable

truthfully and in good conscience to take the oath required

e as a condition,for admission to practice, and we hold that

iti s_relevant-to-i inquire of ana lican is member-__

ship in that party. A negative answer ‘to the question, if

accepted as true, would end the.inquiry on the point. If

the truthfulness of‘a-negative answer were doubted, fat-

ther questions apd information to test the veracity of the

applicant would be proper. If'an affirmative answer were -

received, further inquiry into the applicant’s innocence ot

knowledge as to the subversive nature of the organization

would be relevant. Under any hypothesis, therefore, ques-

- tions as to membership in the Communist Party or known

subversive ‘front’ organizations were relevant to the in-

quiry into petitioner’ s fitness for admission to the bar. His

1959 Majority ee ‘ : pA Bas 48

a ei ‘

_\refusal to answer has prev ented the committee froin i inquir- —

ing ‘fully into his general fitrfess and’ gaod eitizenship and

justifies: their refusal to issue @ certificate.’? ; a

We reaffirm our adherence to the foregoing. views.

- In Orloff v. W lloughby, 345 US. 83 (1953), 97 L. “a. /

812, the petitioner; who had been inducted under.the Doc- ~ —

tor’s Draft Act, brought habeas corpus proceedings ‘for his

discharge from Army because he had not been assigned to —

*- the specialized duties. nor given. the commissioned rank to

which he claimed to be entitled by the circumstances of his

induction. The petitioner had refused to answer the ques- —

tion ‘‘Are you now or have you-ever been a member of

‘the Communist Party, U.S.A;, or any Communist Organi. ~

.-_ zation?’’ in Connection with ia. application for a commis-

ston. Tn affirming the denial of the writ, the Supreme

Court (Justice Jackson) ‘said at page ‘91: ‘Could: this

Court, whatever power it might have in the matter, ration- ee

ally hold that the President must, or even ought to, ‘issue

~ the certificate to one who will not answer whether he is a~

member of the Communist: Party? It is argued that Orloff

is being punished for having claimed a privilege which the

Constitution guarantees. No one, at least no one on_this ss aa

= ——tourt which has” Tepeatedly sustained assertion: by Com-

. munists of the privilege against self.incrimnination, ques-

tions or doubts Orloff’s right to withhold facts about him-

self on this ground. No one believes he can be punished

‘for doing so. But the question is whether he can at the

same time take the position that’ to tell the truth about

himself might incriminate’ him and that even so the Presi- °

dent must appoint: -him to a post of honor’ and trust. We

have no hesitation in answering that question ‘No’.’””

In Lerner v. Casey, 357, U.S. 468 (1958),-2 L. ed. 2d

1423, yelitiener, a meray, sone: in the New som ay ae

44° ot ta i (The Supreine Court of Illinois

:° Transit System, was dintiaand by his employer under the

-, New York Security Risk Law.on the ground that his re-

fusal, based upon the priv ilege against self inerimination

guaranteed by the fifth amendment, to answer a question

of his employer as to his membership in the Communist —

Party, showed that he was of doubtful trust and reliability.

Petitioner sued in the New York State court for reinstate-

ment, attacking his discharge ov various grounds, includ-

ing lack of due process. The New York supreme:court dis-

missed the suit and the Appellate Division and Court of

Appeals both affirmed. On certiorari, the United’ States

Supreme Court.also. affirmed. Justice Harlan for the ma-

jority said, at pages 476-8:

‘In other words, we read the court’s opinion as meaning

that a finding of doubtful trust and reliability could justi-

_fiably be based on appellant’s lack of frankness, cf. Garner

v.«Board of Public Works, 341 U.S.-716;' Beilan v. Board

.of Public Education, ante, p. 399, decided today, just. as

if he had refused to give any other information about him-

_ self which might be relevant to his employment. It was

this lack of eandor which provided the evidence of appel-

lant’s doubtful: trust and reliability which under the New

York statutory scheme constituted him a ss risk. The

Court of Appeals went on to reason that had appellant

. refused, without more, to answer the question, the finding

of ‘dgubtful trust and reliability’ would have undoubtedly

been permissible, and that the basis for such «a finding, in

appellant’s refusal to answer, was not destroyed by the

claim of the Fifth Amendment privilege because the Com-

Llissioner was not required to accept that claim as an ade-

quate explanation of the refusal. —

“ Accepting, as we do, these premises of the state court’s

opinion, we find no constitutional block to its decision sus-—

taining appellant’s dismissal from empl lie.

1959 Majority Opinion a (2 ae

_ Nor, as the Court of Appeals stressed, was the claim of

possible self-incrimination made the basis for an inference

that appellant was a Communist and therefore unreliable.

Hence we are not faced here with vue question jwhether

‘party membership may rationally be inferred from a re-

fusal to answer a question directed to present menifership

where the refusal rests on the belief that an answer, ‘might

incriminate, cf. Adamson v. California, 332 U.S. 46, or with

- the question whether membership i in the Communist Party

which might be ‘innocent’ can be relied upon as a ground

{et denial of state employment. Cf. Wieman v. Updegraff, ::

supra; Konigsberg v. State Bar of Califoynia, 353 U.S.

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

‘We think it scarcely debatable that had there been no

claim of Fifth Amendment privilege, New York would

__ have been constitutionally entitled to conclude from appel- a

lant’s refusal to answer what ‘must be conceded to have ~

been a question relevant to the purposes of the statute and

his employment, cf. Garner v. Board of Public-Works, :

supra, that he was of doubtful trust and reliability. Such

a conclusion is not ‘so strained as not have a reasonable

relation to the ¢ircumstances of life as we know them.’

Tot v. United States, 319 US. 463, 468. This Court -

pointed out in Garner that a government employee can be

required upon pain of dismissal to respond to inquiry prob-.

entanembership in the Communist Party is such a matter.

See also Beilan v: Board of Public Education, suprasCer-

tainly it is not a controlling cuustitutional distinction that

New York, rather than impose on employees, ‘as in Garner

and Beilan, an absolute duty to respond to permissible \in-

‘ quiry upon threat of dismissal for refusal, has in these pro- .

ceedings held that an employee lacking in candor to his

governmental employer evidences doubt as to his trust and

a“

S ° ‘

. 46 | . : The Supreme Court of Illinois

reliability. ‘Finally, unlike the situation involved in Konigs-

berg v. State Bar-of California, supra, there is here no

problem of inadeqfaté notice as to the consequences of

refusal to answer, appellant was specifically notified

that continued refusal might lead to his dismissal.’’

In Beilan v. Board of Public Education, 357 U.S. 399,

. 2 L. ed. 2d 1414, petitioner, a public school teacher, was —

- discharged by the local school board for ‘‘incompetency”

under the Pennsylvant School Code because of his refusal,

continued after warning that failure to answer might lead

to dismissal, to answer a question of his superintendent

as to his membership in a Communist political association.

On an administrative appeal, the superintendent sustained

‘the local board, but the county court set aside the dis-

charge. On the appeal by the-board the Pennsylvania Su-

preme Court reversed and reinstated: the discharge. On ‘

certiorari, the United States Supreme Court affirmed. It.

held that due process-was not violated by petitioner’s dis-

‘ charge on the ground of ‘‘incompetency’’ evidenced by

petitioner ’s.refusal to answer the request of the superin-

tendent for information as to the teacher’s loyalty and as

to: his activities.in certain subversive organizations, such |

refusal being based upon the fifth amendment. and other

constitutional objections.

Justice Burton, who had voted with the majority in the

' Konigsberg case,.said, at pages 404-6, 408-9: ‘‘The only

question before us is whether the Federal Constitution pro- .

hibits petitioner’s discharge for statutory | ‘ineompetency’

based on his refusal to answer. the Puperintendent s ques:

tions.

‘“By ae in iat in the public utilis peti- .

tioner did Hot give up his right to freedom of belief, speech

or association. He did,’however, undertake obligations of

1959 Majority Opinion | 47

frankness, candor and cooperation in answering inquiries

made of him. by his employing Board examining. into his

fitness to serve it as a public school teacher.

. . “The question asked of petitioner by his Superintendent

was relevant to the issue of petitioner’s fitness and suita-

bility to serve ag a teacher. * * * He made- it clear that

_he would not answer any question of the same type as the‘

one asked. Petitioner blocked from the beginning any in-

quiry into: his Communist activities, however relevant to

his present loyalty. The Board based its dismissal upon

petitioner’s refusal to answer any inquiry about his rele-

vant activities—not upon those activities themselves. It

_ took care to charge petitioner with incompetency, and not

with disloyalty. It found him insubordinate and lacking in

frankness and candor—it made no finding as to his loyalty.

Y= f . * e 3 . i

*“Tn the instant case, the Pennsylvania Supreme Court

has held that ‘incompetency’ includes petitioner’s ‘delib-

erate and insubordinate refusal to answer the questions of

~ his administrative superior in a vitally important matter

pertaining to hig fitness.’ 386 Pa. at 91, 125 A. 2d at 331.

This interpretation is not inconsistent with the Federal,

Constitution. | |

‘Our recent decisions in. Slochower v. Board of Higher

Education, 350 U.S. 551, and Konigsberg v. State Bar of

California, 353 U.S. 252, are distinguishable. * * *

“In the Konigsberg case, supra, at 259-261, this Court

. Stressed the fact that the action of the State was not based

on the mere refusal to answer revelant questions—rather,

"It was based on inferences impermissibly drawn from the

refusal.‘In the instant case, no inferences at all were drawn

48 cS ees Supreme Court of Illinois

° ° i 4 : ” : ;

- from petitioner’s refusal to answer. The Pennsylvania

_ Supreme Court merely equated refusal to answer the em-

ploying Board’s relevant questions with statutory ‘ incom-

_ petency.’ ”’ :

In the instant case, as in Lerner and Beilan, and unlike

‘the situation in Konigsberg, no problem exists as to inade-

quate notice of the consequences of a refusal to answer;

the applicant was specifically notified both by the Tllinois

‘Supreme Court in its opinion in 3 Ill. 2d 471, and by the

committee on rehearing that his continued refusal to an-

swer might lead to the denial of his application.

‘In Barenblatt - ‘v, United States, 3 I. ed. 2d 1115, 79

S.Ct. 1081 (1959), the petitioner was convicted of con-

‘tempt by the district court for refusal to answer certain

questions before a subcommittee of the Committee ‘on Un-

American Activities of the House of Representatives. Two

of the questions were ‘“Are you now a member of the Cont-

munist Party?’’ and ‘‘Have you ever been a member of |

~ the Communist Party?’’ The Caurt of Appeals affirmed but

the ‘Supreme Court vacated the judgment and remanded

the case to the Court of Appeals for reconsideration in

light of Watkims v. United States, .354 U.S. 178 (1957),

1 L. ed. 2d 1273. The Courts of Appeals reaffirmed the

convi«tion-and the Supreme Court affirmed. Justice Harlan

said at pages 1129-1131 (L. ed.):

“That Congress has wide power to legislate i in : the field

of Communist activity in this Country, and to conduct

appropriate investigations in aid thereof, is hardly debat-

able. The existence of such power has never been ques-

_ tioned by this Court, and it is sufficient to say, without

~ particularization, that Congress has enacted or considered

in this field a wide range of legislative measures, not a few

°o °

. ’ id

- :

, a : e25

1959 Majority Opinion a - ee 49

of which have stemmed from recommendations of the very

Committee whose actions have been drawn in question.

here. In the last analysis this power rests on the right of |

self-preservation, ‘the ultimate value of any society,’ Den-

nis v. United States, 341 U.S. 494, 95 L. ed. 1137. Justifica- ..

tion for its exercise in turn rests on the long and widely

accepted views that the tenets of the Communist Party

include the ultimate overthrow of the Government of the

United States by force and violence,.a view which has been ;

given formal-expression by th® Congress.

“On these premises, this, Court in its constitutional ad-

judications has consistently refused to view the Commu-

nist Party as an ordinary political party, and has upheld

federal legislation aimed ‘at the Communist problem which

in'a different context would certainly have raised constitu-

. tional issues of the gravest character. See, e.g., Carlson v.

Landon, 342 U.S. 523, 96 L: ed. 547, 72 S.Ct. 5253; Galvan

v. Press, 347 U.S. 522, 98 L. ed. 911, 74 St. Ct. 737. On-

the same premises this Court has upheld under the Four-

teenth Amendment state legislation réquiring those occu-

pying or secking public office to disclaim knowing member-

ship in any organization advocating overthrow of the Gov:

ernment by force and violence, which legislation none can

avoid Seeing was aimed at membership in the Communist

Party. See Gerende v. Board of Supervisors of lections,

341 US. 56, 95 L. ed. 745, 71 S. Ct. 565 ; Cote Board

Of Public Works, 341 U.S. 716, 95 L. ed. 1317, 71 8. Ct.

909. See also Beilan y. Board of Public Education, 357

US. 399, 2 L. ed. 2d 1414, 78 S.-Ct. 1317; Lerner v.

Casey, 307 U.S. 468, 2 L. ed. 2d 1423, 78 S. Ct. 1311;

Adler v. Board of Education, 342 U.S. 485, 96 L. ed. 517,

72'S. Ct. 380. Similarity, in other areas, this Court has

recognized the close nexus between the Communist Party

and violent overthrow of government. See Dennis v. United

> . , *

- The Supreme Court of Ilinos

States, supra; nities Cables te, n, “C.LO. v.

Douds, supra. To suggest that because the Communist -

Party may also sponsor peaceable. political teforms the

constitutional issues.before us should now be judged | as z.

that Party were just an ordinary political party: from the

standpoint of national security, is to ask this Court to ”

blind itself. to’ world affairs which have determined the _

whole course of our national policy since. the close i

World War II, affairs to which J udge Learned. Hand |

vivid expression in his opinion in United States v. Deesis:

—

2 Cir.) 183 F. 2d 201, 213, and to the vast-burdens which.

these conditions have entailed for the entire Nation.

@/@ ee, e

4s@ * * An investigation of advocacy of or prepara-

tion for overthrow certainly embraces the right to. identify

a witness as a member of the Communist Party, see Bar-

sky v. United States, 83 App. D.C. 127, 167 F. 2d 241, and

to inquire into the various manifestations of the Party’s

tenets. The strict ‘requirements of a prosecution under the

‘Smith Act, see Dennis v. United States, supra, and Yates

v. United States, 354 U.S. 298, 1 L. ed. 1356, 77 S. Ct. 1064,

gre not the measure of the permissible scope of a congres-

sional investigation into ‘overthrow,’ for of necessity the

investigatory process must proceed step by step.”’

In Uphaus v. Wyman, 3 L. ed. 2d 1090, 79 S. Ct. 1040 |

(1959), the ° appellant, the ‘executive director of World-

Fellowship, Inc., was .adjudged in contempt by a New

Hampshire county court for refusal to produce in con-

nection with a State subversive inquiry a list of the guests

“attending the organization’s summer camp. The New

Hampshire Supreme Court affirmed the judgment:and the -

‘Supreme Court of the United States also affirmed. Jus-

, tice Clark said at pages 1096-1098 (L. ed.) : ‘‘The interest

‘of. the guests at World Fellowship in their associational

i ks ; ”

)

cate

privacy having been asserted, we have for decision the fed-

eral question Of whether the public interests overbalance °

these conflicting private ones. Whether there was ‘justi-

fication’ for the production order turns on tbe ‘substan-

tiality’ of New Hampshire’s interest in obtaining ‘the

identity of the guests when weighed against the individual

interests which the appellant asserts. National Associa-

tion for Advancement of Colored People v. State of Ala-

bama, 357 U.S. 449 (1958). * * * The Attorney General .

sought to Jearn if’ subversive persons were in the State”

because of the legislative determination that such persons,

statutorily defined with a view toward the Communist

Party, posed a serious threat to the security of the State.

The investigation was, theref re, undertaken in the in-

terest of self-preservation, ‘the ‘uitimate value of: any 80-.

ciety.” Dennis v. U nited States, (1951), 341 U.S. 494, 509,

95 L. ed. 1137, 71 S. Ct: 857. This governmental interest

- outweighs individ

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