# Petition for Writ of Certiorari — In Re Anastaplo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0354%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1961 - **Citation:** 366 U.S. 82 ## Text Uftice-Suprer ; i 7 SE Sane Got | & tout @ ILE COrry a FAILED “MAR “18 19oU ? S. . 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 Ne i 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. ¥ 4] 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 Se _ 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 a aye" 6 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 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). sh 22 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 _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 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 mo 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. Vs 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. a § ‘ _ 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 | 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 9 - 22 ' _ The Committee on Character and Fitness a 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 I 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- _ 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- ney’s oath and (iii) results in his failure to meet the © 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-». ed 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. S 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 1959 Minority Report . Noy? © |. 31 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, ‘ on ‘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 a certificate of “piste eid character and fitness, © * ‘ 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 Oo : 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 a | 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 7 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. u % 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. * ™ a os —-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 - of this country’s history and. do not and.of' themselves ©” 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-- ilar means a final judgment or decree agairist the client, © 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. . , * a > - 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 individual rights in an associational privacy ‘which, however real in other circumstances, cf, National Association for Advancement of Colored People v. State of Alabama, supra, were here tenuous -at best.’’ In ouf earlier opinion, (3 Ill. 2d 471,) we said at page #52: ‘Further, in regard to the contention that petitioner’s -tightoof free speech has been infringed upon by the in- quiries of the committee, we may also consider the estab- lished principle of this jurisdiction that the practice of law is a privilege, not a right. In granting that privilege we lay impose any reasonable conditions within our control and if an applicant does not choose to abide by such con- ‘litions he is freé to retain his beliefs and go elsewhere. | Among other things, the granting of the privilege to prac- tice law in this State is conditioned upon proof by the applicant of his good moral character, of his general fitness 'o practice law and of his good citizenship, and upon the taking of an oath to support the State and Federal con- “| Pe | : 82 i coe . —_ me Court of Illinois stitutions. Such conditions are veleen: univ wary in this land and, so far as we can ascertain, their reasonableness has never been attacked. \ hen an applicant, knowiiig of. such conditions, applies for admission and signifies that he will take'the oath of lawyer, we think it inconsistent with the privilege he seeks that he should be permitted to defeat pertinent inquiry into his ability to fulfill such conditions by any claim of the right of speech.’’ : : In the case of In re Isserman, 345 US. 286 (1953), 7. L. ed. 1013, the respondent was one of the attorneys for the defendants whose convictions were affirmed in Dennis v. United States, 341 U.S. 494 (1951). At the conclusion of the trial he was convicted for contempt of. court, which } _was affirmed in Sacher v. United States, 343 U.S: 1 (1982). ‘The Supreme Court of New Jersey disbarred the respond- ent, and the Supreme Court of the United States then issued a rule for the respondent to show good cause why he should not be disbarred in that court. In disbarring the respondent, the Supreme Court (Chief Justice Vinson) said at‘ page 289: ‘‘Our rule ‘puts the burden upon re- spondent to show good cause why he should not. be dis- | - barred. * * * There is no vested right in an individual to practice law. Rather there is a right in the Court to ~—~—.. proteet itself, dd hence society, ds an instrument of justice. “That to the individual disbarred there is a lass of status’is incidental to the purpose of the Court and cannot deter the i Court from its duty to strike from its rolls one who has engaged in conduct inconsistent with the standard expected of officers of the Court.”’ ’ The Committee on Character and Fitness drew no in- ference of disloyalty or subversion from Anastaplo’s con- sistent refusals to answer questions concerning Communist or other subversive ‘affiliations, We agree with the col- * mittee that a ‘strong public interest supports the interroga- tion of applicants for admission to the bar on their adher- op, ‘ a — - ee eee fe =. ae MEEEweS, Oe. cies, etn iy ~ oo seedy, ne ——— > 1959 Dissenting Opinions. i; “a ence to our basic institutions and form of government and that this publie interest in the character of its attorneys overrides an applicant's purely personal interest in keeping such views to himself. In the light of Barenblatt v. United ' Stdtes, 3. L. ed. 2d 1115, 79S. Ct. 1081, alone, the relevancy - of an inquiry as to whether an applicant for admission to * " the bar is a member of the Communist ‘Party is no longer ~ debatable. Deéisions of the United States Supreme Court since In_re Anastaplo, 3 Ill. 2d 471, fortify. our earlier conclusion that a determination as to whether an applicant can in good conscience take the attorney’s oath=to support — and ‘defend the constitutions of the United States and the State of Illinois is impossible where he refuses to state » Whether he is nber of a group dedicated to the over- throw of the government of the United States by force and violence. By failing to respond to the higher public in- terest, Anastaplo obstructed the proper functions of the Committee on Character. and Fitness. ‘By virtue of his own recaleitrance he failed te demonstrate the good moral character and general fitness to practice law necessary for admission to the. bar of this State. : — " The report of the Committee on Character and Fitness is confirmed. | Report confirmed. © Mr. JUSTICE Bristow, dissenting :* i must dissent from the majority opinion on the ground that-it deprives the applicant of due process of law under ‘the Federal constitution by denying him admission to the bar in the absence of a scintilla of derogatory evidence to | ar the substantial record of his good moral character, and ——— * Cofrections of the Advance Sheets version of this dissenting opinion have been supplied by Mr. Justice Bristow. Cf. 163 N.E. - 2d 429 Advance Sheets:~ “ , 4 ' =) a 54 . eae: ‘The Supreme Court of, 1Uinois Qme anal is in direct conflict with the decisions of the United States Supreme Court in Konigsberg v. State Bar of California, 393 U.S. 252, 1 L. ed.-2d 810, and Schware v. Board of Bar Exammers, 353 US. 232, 1 L. ed. 2d 796. The constitutional issue in this cause is “fot, as the per curtam opinion implies, whether the committee’s questions on political of. subversive: affiliation were constitutional. The issue is rather, even if Anastaplo were wrong about the impropriety of such questions, whether his-good-faith ‘refusal to answer them, on the ground that the first and fourteenth amendments of the Federal constitution barred such inquiry, is a sufficient basis for denying him admission to the bar for failure to establish good. moral character. That issue has‘been determined by the. United States Su- preme Court in the Komgsberg case, which the majority opinion refuses to follow. Before considering that case or the authorities cited in the majority opinion, I must point qpt that while I am no less Sensitive to the very real danger of Communist infil- tration in the bar than is the per curiam opinion, I do not believe, as the majority.opinion does, that an indictment of the Communist Party, however justified, or a reiteration ‘of the lawyer’s obligation to his country, or a warning that the nation must have power -to protect itself, howéver ap- propriate, is any substitute for evidence against George Anastaplo’s moral character. Moreover, I am constrained to call attention to the distorted picture of applicant, which the per curiam opinion endeavors to’ create. The opinion at the outset tries to cr@fte the taint. that: applicant ‘believés in.a subversive poli ical philosophy by quoting isolated statements out of context from the 1951. record—which is not even sit e this cburt—and by com- ies omitting — s statements respecting ™ - f e r 1959 Dissenting Opinions Se | 5D @ to revolution* in the present record. ' The opinion, omits | applicant's statement that his views on the right to revolu- tion are, and have been, the same as those embodied in the Declaration of Independence and advanced by Lincoln and Daniel Webster in writings set forth inthe present record. - Nor does the opinion refer to applicant’s unequivoeal state- ment in the record: ‘‘But as I said when I first appeared before the full committee on January 5, 1951,. I. do not think anyone would be justified at a time ‘such as: this, when the normal processes of government. permit reason- able and peaceful change, to participate in action leading to the overthrow of the government. The Committee must realize that I would be no less reluctant than they to see ‘the right of revolution exercised, except in most extreme circumstances. ‘I trust, that my. position and what I have contributed to its defense indicate ‘an abiding commitment to constitutional government. = ; \ . Instead, the opinion dismisses such: testimony summarily with the statement that applicant’s Views do not now require narration because the committee did not find them objectionable, after leaving the taint from: the isolated — \ statements in the prior record. \ _ The per curiam opinion. clutches at straws by even re- -ferring to Anastaplo’s views on resistance to a court de- cree as grounds for denyi ing him admission to the bar, in view of his unequivocal statement: that he would resist a court decree only under circumstances where constitutional government has heen subverted, so that resistance would really be aimed at restoring the constitution and support-\ ing it without reservation. Surely this is no war against _ the minority report of the couunittee. frankly regarded this matter of resistance to a court decree as a far fetched ground for. excluding applicant, particularly in view of his own exemplary. conduct during the course cf his bar ad- the constitution, as the per ee implies. Even 3 é . » % [ne The Supreme Court of illingjs mission litigation these past 9 years, which is the best evi- dence of. his reaction to court orders. I could not, within the confines. of this disse an oviaahs summarize the hours of questions, answers. and arguments revealing all: of .applicant’s views. I have already aljnded to some of them. However, since the majority opinion has sought to give a distorted picture of those views and of the nature of the proceedings, I wish to ‘call attention to. some of the questions and answers which cast light on this matter. At the very first session, applicant was asked whether _ he was a member.of any nationality organization, After _ he replied that he was not, he was asked whether he was a member of a nationality organization that had been desig- nated by the Attorney General as subversive. ° Applicant refused to answer, explaining that when the question desig- nated the organization as subversive, 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 particulerty; was outside of the terms of the Supreme Court reheating order of 1957. He pointed out that if the committee was linterested in eliciting’ information, it al- ready had the answer to this question, since he had just stated that he was not a member of any nationality organi- zation. In response to the query, “Are you refusing for fear - that if you did answer one way\or another we might be: _ able to check and find that you have committed perjury,” - applicant stated, ‘‘That is not my fear.’’ He added, ‘‘ With - -reference to perjury, it-isirrelevant ‘to this situation as is any reference to the Fifth Amendment.”’ 3 1959 Dissenting Opinions = , 57 He explained that he would refuse to answer on con- ° stitutional principles all questions relating to political affili- ations, including those with the Democratic and Republican parties, as well as with any and all organizations on the Attorney General’s list, including the Communist Party, . the K.K.K.,. or the Silver Shirts of America, even if the answers reflected favorably on him. He stated: ‘‘I would - rather be rejected by this Committee if this question be-: - eomes crucial by taking a firm position on constitutional principles, than be accepted by. seeming to take it, and at the same time taking a back door.’’ Applicant added the observation that the committee, in pursuing this line of inquiry, was asking questions the ~ _answers to which it had very little doubt about. In support of that assertion he referred to a statement in a. document, identified under oath as accurate, apparently reporting the: . admission of a Justice of this Court that at the last hear- ing ‘‘no one of the Committee or the Court ever thought that he [Anastaplo] was a Communist.’’ Applicant also reiterated that the committee had-nothing in the record originally, or during the course of the intervening 7 or 8 "years, to justify this line of inquiry or to-indicate that he would not take his oath seriously and in good faith. In this connection, a spokesman for the committee admitted: “No one has stated to, this committee that -you are or have ever been a Communist, or a member of the Ku Klux Klan, or a member of the organizations listed as sub- . versive on the Attorney ‘Gerféral’s list.”’ Consequently, applicant moved that the committee desist from this line of inquiry, which was beyénd the Supreme Court mandate, was neither relevant, nor for the alleged — purpose of inquiring into areas it might otherwise be un- certain about, was being pursued only to induce him to assert his constitutional objections, and vas thereby highly ~ prejudicial. The committee denied his motion. | ‘ ra) ra 58 ne Po The Supreme Court of Illinois In. response to the admonition by the committee that his refusal to answer the question whether he was a ‘member of the Communist Party ‘‘imay have serious conséqyuences,” Anastaplo replied, ‘‘Am I ineligible because I takethe © ‘dissents of’ certain members of the Supreme Court | seriously?’’ He then pointed ‘out thet, i in the Kontgsbergq - and Schware cases (353, U.S; 252; 353. U.S, 232) even the inajority of the court supported his interpretation of the ~ law, whereby ‘refusal to answer the ,questions on the grounds asserted by him would, at most, constitute merely one piece of evidence in the record. He argued that such ‘ refusal would not necessarily be adverse nor warrant re- jection. - His’ position is best ‘stated in his letter to the. committee on March 27, 1958, which is included in _the record : ee %. 7 - 4 4 “Is one not gbliged: in the interest of good iiaanes and judi- cial integrity to resist strenuously, even at the risk of incurring official displeasure, unconstitutional disregard of the ‘rule of law? r, and thereby provide the best evidence that a character com- 7 ittee can desire with respect to an applicant’s qualification for the . practice of law?” . ; 1 not, in fact, such resistance reflect, the best. traditions, of the _This precise point, that refusal to answer may. be indica- tive of good: character, is evident in this record. Applicant courageously and properly .refused to answer the uncon- stitutional religious inquiries—t:e., whether he believed in a Deity, or eternal punishment. as a sanction for his oath. He stated that he would respect his duties as an attorney, with or without the oath, but did not care to speak about : whether there were any religious sanctions, such as: the fear of eternal punishment, back of his oath, or whether . ‘he believed in a Deity, on the grounds that the constitution _ barfed such inquiries. This line of inquiry, persisted in since the very first session, and’ apparently based upon an 1856 decision, was later admitted by the committee to he improper and unconstitutional: since aides ae 1959 Dissenting O pinion Poe ‘ . The per.curiam dpinion completely éverlooked this por- . tion of' the record. I cannot follow that course, particularly ‘since the record shows that applicant’s refusal to answer these religious questions had so prejudiced the committee that one member stated>that the refusal to answer had a ‘substantial hearing on his [applicant’s] fitness to practice & law.’’, Such peiidios could hardly be wiped out by the statement of the chairman that these impreper questions ‘would not be taken into®consideration. | . The majority opinion also ignored applicant’s argument in support of his refusal to answer the ‘political affiliations ~ questions, that the avowed Communist of the type the. committee would want to. ferret out of the profession as a ‘menace to our government would have little difficulty in compromising constitutional principles and in giving the desired answers, and that the approach of the committee ‘was effective only in discouraging applicants to stand by . principles. I find merit in this argument. ' Pe shy > The majority opinion makes no reference to applicant’s closing argunients, Which I find indicative of his views on our form of government, and the obligation of the lawyer to thal government. Here, the applicant first reviewed this cause from its inception, pointing out that the original committee action-in 1951 reflected the tenor of the times, . when groups tried to outdo each other in hunting possible subversiveszand explaining that the Illinois Supreme Court. — Was misled into sustaining the committee’s aetion by the suppressionsand distortion of the sequence of evidence.. He .-_ reiterated the lack of foundation for the affiliation inquires, the legal arguments supporting his position, with particu- lar emphasis on the Konigsberg record and decision. Fi- _ nally, he emphasized the basic tenets of our republican _- government and. the obligations of the bar to preserve _ them,’and to lead the nation by precept and example. e , a’ -” a Oo °-_ . ‘The Supreme Court of Mlinois In. addition to these significant omissions in the per curiam opinion, which give a:completely misleading in- pression of the applicant and the hearings, I must also take issue with the scant attention paid by the per curiam opin- ion to the chatacter affidavits and letters of refergnce gub- mitted to the conimittee, In my.opinion the court should have given considerable weight to these affidavits, as diil the United States Supreme Court in the Schware ‘and Konigsberg cases (353 U.S! 232, 244, 1 L. ed. 2d 810; | 353 U.S. 252, 965, 1 L. ed. 2d 796), particularly since they were submitted at the committee’s request, on .their forms, and were presented by persons of stature in “the legal profession and other fields, who do not bandy about tributes such as were paid to applicant’s honesty, integrity, . ” _geneéral conduct and character traits my ing him for the practice of law. ‘The affiants included Professor Aleiendes - Meikjejohn, Professor Emeritus of the University of Wisconsin and past- president of ‘Amherst. College, in whose. name the American Association. of University Professors. established an Annual Award; Professor Malcolm Sharp, ‘professor of - law at the University of Chicago; Professor Roscoe Stef: fen, professor of law at Yale University and the Univ ersity of Chicago, and advocate for the Department of Justice before the United States Supreme Court; Professor Yves . Simon, formerly of Notre Dame and currently professor” of philosophy at the University »f Chicago, and recipient - of the Spellman-Aquinas Medal for excellence in philosophy from the~ American Catholic Philosophical Association; Richard Weaver of the Univ ersity of Chicago faculty and editorial writer for Modern Age, a conservative review. Other affiants include a former chairman of the Character and Fitness Committee; a lawyer who authored a text on ‘the, canons of ethics, and contributed substantially to bar oo 1959 Dissenting Op. tions 61 _ association work; a minister, the Dean of University College, and others who supervised Anastaplo’s work. These affiiants praised applicant’s character unstintingly. We note some of the ‘comments, which are’ representative "of the tenor of the affidavits. + Professor Meiklejohn attested: ‘‘He {Anastaplo] is in- tellectually able, a hard, thorough student and moved by high devotion to the principles of freedom and justice ** * unqualifiedly worthy of ‘the highest trast and con- fidence.’* . , - Professor Sharp attested; ‘‘His [Anastaplo’s] reputa- tion in these respects [for honesty, integrity and general ‘onduet | is of the highest. No qustion has ever been raised about his honesty or his integrity, and his general conduct, characterized by friendliness, quiet independence, industry and courage, is reflected in- his reputation * * *,. His fellow students respect him, He ‘is in every. way among the very best of the students I have seen in my teaching experience,”’ \ Richard Weaver attested to applicant’s unusual intel- 's lige ve, fairness and. personal modesty, and patriotism in the old-fashioned sense, as well as his sympathetic ‘under- standing of affiant’s conservatism. ‘‘Everything I know about applicant leaves me: feeling that he is an unusually intelligent, balanced and helpful American citizen.”’ Professor Yves Simon characterized Anastaplo by ‘‘in- " telligenee, conscientiousness, sincerity and integrity,’’ and concluded, **I consider Anastaplo to be a young man of the _ ost distinguished and lofty moral character.”? >. Dean Donohue of University College, where Anastaplo - taught, refers to his honesty as ‘‘admirable and unequivo- eal,”’ and to his integrity as ‘‘perhaps even over rigid for our cultyre.”? . + iat | a. -62 . ee | mapreme Court. of Hlinois Robert Cousens, Anastaplo’s supervisor at the Inudus- trial Relations Center, attested: “*T would: recommend him without the slightest reservation for any position in- ” volving the highest and most sacred trust. If admitted to the American Bar, he could i nothing that w ould not re- flect glory on that institution.’ ; ‘ | Attorney William Trumbul atscsied: ‘« Affiant has found applicant to exhibit in all a en an exceptionally high degree of honor-and integrity\and profound loyalty to his country, its form of government and its ideals and to enjoy ° an excellent reputation for good moral -character.”’ In addition. to this evidence,\I believe that a review of the career of George Anastaplo will also cast — upon his character and fitness. This record shows that George Anastaplo was born in 1925, in St. Louis, Missouri, where he secured his ele- mentary school education; that the family moved to Carfer- ville, Illinois, where he attended high school; and that he attended the University of Illinois for some three months -fore, enlisting in the Air Corps, where he attained the rank of Second Lieutenant, and served some 38 months in the Pacific, European and North African theatres of war. He came out of service in February, 1947, and was attached . to: the Inactive Reserves until his resignation some few years ago. He was accepted by the University of Chicago for the Fall Term of 1947, and during 6 of the intervening months he attended Southern Illinois University. He se- cured an A.B. degree froin the University of Chicago one year later, after carrying a double schedule of classes, and then attended law school. He passed the bar examination . in the fall of 1950, and was graduated from law school in 1951. | _ a 1959 Dissenting Opinion: heme . 63 After this court denied his application for admission to the bar, he, his wife, whom -he married in 1949, and ' their child had a brief trip to Paris, where he enrolled at the Sorbonne. From there they ‘went \to~Dallas, Texas, where his wife’s family resided. During their sojourn there, Anastaplo took a course in oil-and-gas law. At the — end of.1951 the family returned to Chicago, and Anastaplo began working at the Industrial Relations Center on- the ‘preparation of materials for a training course for manage- ment personnel. He remained at that job until August of 1957, and also taught an adult education course at the - University. College of the University of ‘Chicago. More - recently he has been devoting half time to teaching at the ‘College, and half time to an administrative post there, and is working toward his Doctor of Philosophy degree on a phase of constitutional law.» , Other activities since the original character hearing in 195k include a 6-week management study of the Socony Mobil Oil Company, in New York inthe summer of 1956, pursuant to a business fellowship from the Foundation for ‘Economic Education; and serviug as an election judge at the behest of both of the major political parties, in differ- ent elections. In this connection, it may be noted that the | critical question of some committee members respecting this activity, when Anastaplo refused to identify his party affiliations on’ constitutional grounds, prompted him to in- quire of the county judge whether he had unwittingly breached any rules by serving the Republican and Demo- ‘ cratic parties at different elections, and whether something nore than pro forma identificatiou with a political party might be necessary to serve as an election judge. He also offered to return any payment received for his- services. There was, however, no breach of any rules, nor any re- payment of earnings necessary... _ s . A ’ / , - . 64 . | The pene Court of Ilistois: In the light of all the foregoing evidence sensing in the current record of over 400 pages, compiled pursuant to a searching examination of applicant by the committee - ‘during some six sessions of several‘hours each and ex- tended’ from: February to May of 1958, it is not clear to me just how the majority of the committee or the per curiam opinion could conclude that applicant’s refusal to reply to the questions on political affiliations prevented - -the committee from determining his character and fitness. I find apposite ‘the statement in the minority report of the committee: ‘‘ * * * On this record, it is pure sophistry © to hold that his refusals to answer nm prevented our determining his character.’’ " Talso fail to perceive the necessity for the ade of an entire year between the conclusion of the hearing and the - decision of the eommittee. Although the majority report “denied applicant’ admission to the bar essentially because they claimed his failure to reply to questions 6n member- ship in the Communist Party or other subversive groups prevented inquiry into subjects which bear on the ‘issue of character, it is significant that the majority made favor- able findings on all matters designed for inquiry in our rehearing order. They found that applicant’s views on the ~ right to revolution were not objectionable; nor was there anything objectionable in his activities since the original petition was denied, or with-respect to his present repu- tation. ‘The report stated ; ‘*Since applicant’ s original nnatbialiins was denied, he ~ Mas engaged principally :in the academic life as an in- structor and research assistant at the University of. Chi- cago. * * * From the character affidavits and reference letters which have been submitted to us, it would appear that the applicant is well regarded by his academic as- = ¥ . _ Sie a 4 ; F ; ° ° ’ "1959 Dissenting Opinions. :; 65 sociates, by professors who have taught him in school and by members of the Bar who know him personally. We have net been 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 cast ay doubt on appli- cant’s loyalty or which would tend to connect him in any manner with any subversive group.?’ : Under these circumstances, I find more cogent the ra- - aa _tionale of, the minority report that since there were no adverse findings $n the questions specified for rehearing, and no derogatory information, applicant should not have’ been denied admission to the bar. I find entirely reason- able the minority’s argument that applicant’s refusal to answer certain questions was merely one factor which —Inust be weighed along with the reasons for such refusal, and with other evidence; and that refusal to answer questions on grounds of devotion to constitutional princi- ple does no [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0354%3A2. Public record. Not legal advice.