Brief of American Civil Liberties Union, Amicus Curiae — In Re Anastaplo

REcory. .. [ries

SEP 23 1960

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JAMES R. BROWNING, Clerk

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IN. THE

" Supreme Court of. the United States | -

OCTOBER TERM, 1960.

, on

3 i | :

No. 58 —

Is Re

GORGE ANASTAPLAG, =

. Petitioner.

Pe

o* AWRIT OF CERTIORARI TO THE SUPREME COURT OF: THE

STATE OF ILLINOIS,

_

anit OF AMERICAN CIVIL LIBERTIES UNION,

. AMICUS CURIAE.

-2 :

. Harry Ka.ven, JR;

ao ~ Roscoe T. STEFFEN,

co American Civil Liberties

2 ee Union, ‘Tlinois Division,

. ks ; 19 South La Salle Street,.

, re Chicago Be Illinois, a

, Eounsel, on

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THE GUNTHORP-WAGRER PRINTING COMPANY, OWIC*Q0 /

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INDEX.

ipa . _ PAGE

ie OF Temtariins:- Cid. 6a. oo oie esisescdeesse ii

Interest of Amicus...... geecsveesess ey ee 1

The Question er eaaccee ’ heen: seee’ 2 ;

. Matters Not in Dispute.,...... Fevecevereses : pesevke 3

The Main Argument es ear Oia CESS RNR )

A. Bwvidentiars Grounds for Denial.:....,..-.. 10

- B, ‘The Oath as a Basis of Denial.............. 15

_- «Cs Automatic Grounds for Denial... .. 3 co eaae 18

| Authorities Distineuishod, fonkwae wide baer 23

Conelusion epee tee eet ese bette eee een et eees er 26

3

2

_ Taste or AvTHorities Cire.

Cases.

American Communications Association Vv. — 339

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I sce tsicexceces casey sed, lee 8

‘In Re Anastaple, 3 Ill. 2d 471 (1954)................ 16

Barenblatt v. United States, 360 US. 109 (1959)..... . &

Beilan v. Board of Education, 357 U.S. 399 — ", 4, 24

In ‘Re Day, “181 Ill. 73.(1899).......... ee eee nae >

Dennis v. United States, 341 U. 8. 494 (1961)...3...6 3

Fiske v. Kansas, 274 U.S, 380 (1927)......0...0::0:.

Ex Parte Garland, 4 Wall. 333 (1866)................ 5

Garner v. Board of Public Works of Los Angeles, 341

Pp. Eo Se re 24

Girouard v. United States, 328 U. S. 61 (1946) eevee 23.

Kimm v. Rosenberg, 363 U. S. 405 (1960)........04.. 23

\ Konigsberg v. State Bar of California, 353 U: S.' 252

» (1957) ..... Seis eeeent ees 3, 4, 5,6, 9, 11, 12, 14, 19, 20, 25

Lerner v. Casey, 357 U. S. 468 (1958)............ eee 4,24

Orloff v. Willoughby, 345 U. S. 83 (1953)...... ivcsee

Railroad Co. v. Rockafellow, 17 Ill. 541 (1856) beeeeeee 16

_ Schware v. Board of Examiners, 353 U. 8. 232 (1957)..

’ In Re Summers, 325 U.S. 561 (1945). ah Yee Fee is pee

United States v. MacIntosh, 283 U. S. 605 (1931)...... 23

United States v. Schwimmer, 279 U. S. 644 (1929). .

Wieman v. Updegraff, 344 U. S. 183 [| a ee J

Yates v. United Siates, 354 U. 8. 298 (1967) ates ay A

Statute.

Il. Rev. Stats = Ch. 110, 110158, Sect. Ix. os¥ tees J

- IN - THE

-. Supreme Court of the United States

> | ro: ‘OcrosER Term, 1960: -

No. 58.0

: : : . \

2 In Re rs

GEORGE ANASTAPLO, .

oy | Petitioner, ©

2) a

"ON A WRIT OF CERTIORARI TO THE SUPREME COURT OF THE

hay fin STATE.OF ILLINOIS. .

BRIEF OF AMERICAN CIVIL LIBERTIES UNION

Pe AMICUS. CURIAE.

INTEREST OF AMICUS.

The American Civil Liberties Union appears as amicus ©

Curiae in this case with the consent of both parties {'ed °

with the Clerk of the Court. This informal memorandum -

‘is submitted to be of what help we can to the Court. Coun-”

sel for amicus also are friends of the Petitioner, whom

we knew first as a law student at the University of Chi-

- ago, and we have followed with some concern the long

course of his efforts since 1951 to- become a member

of the bar of Illinois: .We know that’ the Petitioner

has been quite independent in his views ; that he has in-

sisted upon his position—stubbornly if you will—as-a mat-

ter of principle, when he could easily ‘have taken a more .

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conformable course ; ‘that he has taken many hours of bar

committee time, and that: many tempers have been ruffled.

But,, we also know that the Petitioner has acted in good

‘faith, with dignity and at considerable personal sacrifice to

himself and his family in an honest belief that he és right.

_We realize, of course, that our personal asses.nient of the

‘Petitioner can scarcely weigh in the determination of. the

issue ‘now before this’ Court but we would be less than

candid if we did not acknowledge at the outset the affee-

tion, coneern,. and: respect we feel for him.

We realize that ‘the issues raised by the Petitioner’ s stub

_ bornness as they come before this Court, are rich in per-

plexities. But as teachers of - law engaged in training

young men for a life at the bar, we are impressed, too, vith

the large significance of these issues. They involve nothing

less than a definition of the desired moral character of the

American bar; and as such they touch matters of na-

tional public interest. For an independent, intellectually

honest and .morally courageoys bar is as integral to the

sound functioning of American democracy .as is an inde-

pendent cami

3B oRE QUESTION PRESENTED.

~The question presented for review in this ont is whether

a state in the regulation of admission to its. own ‘bar can,

consistently with the mandate ef the Fourteenth Amend- |

ment, deny admission to an applicant who in good faith

_ and as a matter of principle or conscientious objection re-

fuses to answer whether he is a member of the Commutist

Party, assuring that the record apart from this re” sa!

contains aflequate and satisfactory evidence that he has.

the requisite moral character.

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MATTERS NOT IN DISPUTE.

We begin with a series-of points as to which there is, we

think, no substantial disagreement. Discussion of these,

however, will conveniently serve as.a preface to the argu- ¢

ment which follows: os

_ First, the Propriety: of the question about Communist

affiliations ‘need not, in our view, be in issue. That is, fhe

Petitioner’s case does not.stand or fall on the argument

that the quesfion is improper and beyond the power of the

bar committee to ask.” For the sake of argument, it can

be conceded that the question is proper and relevant, and

that the asking of it does not ‘violate any constitutional

privilege of the Petitioner. ona - )

We would note, however, that the Petitioner's objections

to the question were not frivolous at the time he first made

them in 1951, preceding as they did the decision in Dennis

_v. United States (1951), 341 U.S. 494, aitd have not become

frivolous sinee. This Court has never passed on the exact

issue presented. The case must closely in point, American

Communications Ass'n y, Douds (1950), 339° U. S. 382, °

might well be distinguished, upon full consideration, be-

_ cause of the differences between labor union leaders and

members of the bar. Further, in Ke vigsberg v. State Bar

.of Califoinia. (1957), 353 U. S. 252, this Court explicitly

said that the issue was not frivolous. And the only note-

worthy development since K onigsberg is the decision in

Fates v. United States (1957), 354 U. S. 298, which served

~ to narrow appreciably the Jegree to which being a mem-

her ‘of the Communist Party might’ constitute a crime/

Finally, we would emphasize tha: Petitioner’s objections

have special merit on this record, since the Bar Com-

mittee laid no adequate foundation for asking him ques-

tions about membership in the Cor:munist Party. 7

_ ‘Second, there can be no donbt of the inadequacy of the

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‘warning to Petitioner, that is, if Illinois now seeks to

justify its action upon the ground. only, that Petitioner

refused to answer a relevant question.

The Committee at no time gave the sort of warning rape

templated by Mr. Justice Black, in Koni igsberg, 353 U.S

at p. 260-1, or, as was actually given. in Lerner v. Com, :

357 U. S. 468 and in Beilan v. Board of Education, 357 U.S.

399. That is, he was never told that failure to answer the

question: Are you a Communist? ‘Would of -itself be

ground for denying his petition.

Both Committee and Court state the ae for they

‘say: ‘‘unlike the situation in Konigsberg, no problem exists

as to inadequate notice. of the consequences of a refusal

to answer.’’ (Petition, p. 24 and p. 48.) The Committee.

points to two places in the record to support its statement,

but it will be enough to refer to one only, as the other is

equally inadequate. At pages 116-117 of the Committee

Record (one of the two references), Commissioner Stephan _

tells Petitioner that the question is an important one— .

‘‘to .be treated very rennin J —and then follows this.

colloquy:

Mr. Keliieale: Yes, I would like ¢ to find out sia

what this entails. You are not suggesting that ‘refusal

to answer that question would per se block’ my admis

‘sion to the bar?

Commissioner Stephan: : No, I am saying your ree

fusal. to answer that question as to whether you are a

- member of the Communist Party, could and might.

Mr. Anastaplo: I see. ne

- It is surely clear that a “eould and might”? warning is

a very different thing from a. peremptory warning that

unless Petitioner answer he will be barred. The Commit: |

tee’s warning went only so far as to tell Petitioner that

a. failure to answer the Communist question would be

weighed heavily in determining ‘‘moral character and good

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citizenship ;”’ it Was an assurance that the Committee would

not make failure to answer an automatic bar, as considered

in K onigsberg.

Third, we assume that nothing turns on whether we

_¢lassify admission to the bar as a matter of privilege er as—-———

a matter of right. This old dichotomiy is not an aid to

analysis. It is clear that, however we classify. it, admission

to the bar involves substantial interests of the applicant,

who has invested much time and money in the pursuit of

-- legal training. In Schware v. Board of Examiners: (1957),

353 U. S. 232, moreover, this Court has set the matter at

rest. Even if admission to the bar is seen as a privilege,

it is a privilege which can be denied by a state qnly. if there

is compliance with the mandate of the Fourteenth Amend-

ment. ieee |

Fourth, we assume that this ease presents no question of

special sensitivity in the area of state-federal relationships.

_ One might well argue on the contrary that there is a strong

national interest in the moral quality of state bars making —

‘up as they do-the national bar. But we fake it to be clear,

. In any event, that the state has no special local interest in

this matter, greater, for example, than it had in determin-

ing the qualifications for school teachers in Wieman v. Up-

degraff (1952), 344 U.S. 183. Indeed, one’ of the most —

recent decisions of this Court (Schware v. ‘Board of Exami- ,;

ners (1957), 353 U. S. 232), found invalid, under the Federal: 3

Constitution, efforts of the~state to regulate acmiscion to

its bar. See also, Ex Parte Garland ( 1866), 4 Wall. 333.___

Fifth: There is no dispute that petitioner must carry

the burden of proof, that is, thé burden of furnishing the

Committee with “such evidence of his moral character and

good citizenship as in the opinion of the Committee would

justify his admission to the -Bar.”’ Ill. Rev. Stat. 1959, e.

110, §101°58. Seet. IX. Oe,

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While this language requires that the Committee must

be satisfied of Petitioner’s qualifications, we take it to be

- elear that the Committee may-not for some captious reason

refuse to certify an applicant, and thus block his admittance

to the Bar. In the first place, the Committee is but an

agency of the Supreme Court, and it is the Court which has

the plenary power to grant or deny admission. The find-.

ings of the Committee are. entitled .to respect, much as are

the findings of a Inaster,. but = are not binding upon the

Supreme Court.

Further, we assume that the Illinois Supreme Court

must itself be guided by some. objective standard in

determining what constitutes ‘‘moral- character and good

citizenship.’’ We recognize that this language is ambigu-.

ous, but it would be quite intolerable to suppose that, there-

fore, it gives either court or committee free rein to give it a

‘biased or irrational meaning. Schware.v. Board of Bar

Examiners (1957), 353 U.S. 232. - Indeed, it would Be meal-

ingless to speak of ‘‘ burden of proof,’’ as Mr. Justice Har-

lan does in Konigsberg (1957), 353 U. 3. 252, 277, if there

- were no discernible standard to be met.

It is thus evident that Petitioner i is-not faced ahh Mr.

Justice Harlan’s contention in Koniggberg (1957), 353 U.

S. 252, 311, that a State through its Admissions’ Committee

may properly, require an.applicant to answer any relevant

question (not constitutionally privileged) as a condition of

admission. Nor is it necessary to point out that insistence

unon a bureaucratic nicety of that sort, in complete disre-

gard of substantial evidence of moral character and-good

y citizenship, might be an unwise way.for a State to order its

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affairs. It is enough to say that Illinois has not done so.

We do not enter upon a discussion of whether, in Illinois,

. it is a function of the Court or of thé Legislature to state

_ the qualifications for admigfion to thé Bar. Grant that

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, + is a power inherent in the Court, In re Day (1899), 181

Ill. 73, 89, nevertheless, nothing turns on the point here,

for the Court has long accepted, the legislative test of

‘moral character and good citizenship.’ But it is im-

portant to insist, as” Chief Justice Cartwright stated in

that case, that admission to the bar is an ‘‘exercise of

_ judicial power’’; admission or exclusion “‘is not the exer-

cise of a mere ministerial. power.’’ Ibid. p. 90. |

‘Sixth: It is also clear, we submit, that Petitioner has

met the burden of proof; that is, there can be no ~

rational doubt that—save for’ h’s refusal to answer ques-

tions concerning his religious and political affiliations, a

matter to be discussed later—Petitioner has fully estab-

lished his ‘moral character and good citizenship,’’ ‘how-

ever strict the standard may be. Not only has he furnished

far more affirmative evidence than is.usual, but he has

_ freely answered the Committee’s questions for hours on end

". concerning his background, his views on political and social

questions, on‘all manner of things. And, it is significant,

that neither Court nor Committee has pointed to any evi-

dence raising any doubt as to petitioner’s moral qualifica-

tions or his good citizenship. . f ;

The Committee, in fact, expressly put the point beyond

question when it said: |

Since applicant’s original ‘application was denied, he

has been engaged principally in the academic life ‘as

an instructor and research assistant at the University

of Chicago. From the character affidavits and: refer-

ence letters which have been submitted to us, it would

appear that the applicant is well regarded by his asso-

ciates, by professors who taught him in school and by

members of the Bar who know him personally. We

have not been -stpplied. with any information by any

third party which is derogatory to Anastaplo’s charac-

_ter or general reputation. We have received no in-

formation from any outside-souree-which- would «ast

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any doubt on ‘applicant’ 8 loyalty or which would tend

‘to connect him/in any manner with any subversive.

group. (Petition, eed Vise pp. 11-12.). .

“Seventh: “We take it finally, to be clear that ‘Petitioner

has maintained his position | \throughout. this proceeding in

discloses hjm to be a man well read in -ph osophy, i in gov- '

who hoids the

‘ sincere and dignified adherence. to in pi The record

ernment and in the history of social. ide

. refreshitig view that the ringipe declarations of Jefferson, .

‘Lincoln, and our: other great

eaders are to be-taken Seri-

ously—particularly by members of the bar. The minority

members of both Court and Cominittee have | stated their

belief i in Petitioner’ s sincerity. >

Indeed, the majority report of the Committee. wai indi-

- eate that, so far from having-any doubts of Petitioner’s

sincerity, it was disturbed -rather by. the firmness of his ,

convictions. The report states: sf

_A majority of the Committee has arrived at the con-

clusion that the views expressed by the applicant with .

respect to the right té overthrow the government by

¢ force or violence, while strongly libertarjan and ex-

pressed with an intensity and fervor not necessarily

shared by all good citizens, aré not inconsistent witli

those held by many patriotic Americans both at the

present time and throughout the course of this coun-

try’s.history and do not'in and of themselves teveal -

' any adherence to subversive doctrines. a sal

pendix p. 14.) -

Thus it is not Petitioner ’s good faith which i isin question on

but whether his sincere belief. that the rights afforded by ~

the First and Fourteenth Amendments are broader than .

this Court has yet declared them to be, is to be brushed

aside.and wholly ignored when passing ‘on his moral char- ©

- aeter and good citizenship. Were the Constitution a thing

of fixed'and unchanging content something could be said

for this view, but it is not. Moreover, it is the business

/. are relevant.

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of the awyer, as of the dissenting judge, as a matter of »

intellectual integrity, to insist on his views in all proper

ways, even though co.itrary to.the existing order. Peti-

tioner’s views. may: be wrong; he may have chosen the

wrong forum in which to assert them; but, surely, he is

not to be said, because of a good faith error of judgment,

to have failed to make out a case of good moral ‘character.

In his dissent in Konigsberg, 353 U. S. 252, at 312, Mr. *

Justice Harlan writes that ‘“a State may refuse admission

‘to its Bar to an applicant, no matter how sincere, who re-

fuses to answem questions which are reasonably relevant

to his qualificatig> and which do not invade a constitu-

tionally privileged area.’? We have pointed out above that

_ Illinois has not made. refusal to answer, but a lack of

“moral character afid good citizenship,’ the test. Even if

this were not true; we respectfully suggest that it will not”

do to lump {all questions together, just so long as they ©

wv’ is) one thing to require an applicant to

answer as to his age, his past addresses, his employers, and

quite another to insist that’ he ‘say whether he is a Republi-

can, a Democrat, or a Communist. The question here is ©

_ éwhether a petitioner, who in.good faith believes that the .

latter questions ‘‘invade a constitutionally privileged area,” »

and refuses to answer them on that ground, may be denied-.

admission, if he in all other respects is eminently well - 7

qualified. . ae

ae _ THE MAIN ARGUMENT. |

The majority of the. Illinois Committee on Charactér and |

— in denying the Petijtioner’s application appears

to Have done so on confused grounds. It stated that his’

_ Tefusal to answer questions about Communist affiliations :

_“(i) obstructs the lawfal processes of the Committee,

_ (ii) prevents inquiry into subjects which bear intimately —

on the issue of character and fitness, such ‘as loyalty to

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eur basle institutions, helief in re prexentativ e government

and bona fides of the attorney’ s ozth and (iii) results in.

. his failure to meet the burden of establishing that he pos-

sesses ‘the, good moral charactér and fitness to practice law,

which are conditions +o the granting of a license to practice

law.’’ (Petition, Appenlix, p. 26.) And again. the -Com- |

‘mittee states: ‘‘By reason of applicant's own recalcitrance

. he has failed to demonstrate the good moral character and

general fitness to practice law necessary for admission to —

the Bar. We cannot certify. the applicant as worthy of

‘the trust and confidence-of the publie when we do not know

that he is so worthy and #hen he has prevented us fram ~

finding out.’’ (Petition, Appendix p. 27.) aes

The final action in this case, of course, was taken by the’

. Illinois Supreme Court. The appeal herein is taken from

’ that court’s decision, not from the action of the Committee.

But the’ Illinois court wrote only a per curiam opinion

and, on careful reading, we find no point at which it dis-

approves or departs from the majority report of the Com-

mittee on Character and Fitness. Indeed,. the final sen- -

tence of the court’s opinion states: ‘‘The report of the

Committee, on Character and Fitness is confirmed.’ (Peti-

tion, Appendix p. 53.) Stich being the case, and since the

majority report of the Committee is:more explicit than the’

per curiam opinion,of the Illinois Swpreme Court as to the

-exact grounds on which the Petitioner was: denied admis-

sion, we deem it appropriate to refer back to the majority —

report of the Committee for an authoritative statement of

the — on which the Illinois court acted.

ai Evidentiary Grounds for Denial.

In our view, the: Committee statements. may ‘fairly be

read to indicate that, in the face of Petitioner’s refusal to

answer, it was left with a naked doubt as to Petitioner’s

character, and hence refused to certify him on that grdund.

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But, to express a doubt in such circumstances is but another __

« way of saying that, Petitioner’s refusal gives rise to an

. inference of bad character. For surely, as pointed out

above, the question is not whether the Committee or the -

Illinois Court had some doubt—which is probably true in

_ every case—but whether that doubt; or the inference upon

which it rests, is such that, notwithstanding the affirmative

evidence in the case, the Committee is required to say that

Petitioner has failed to, sustain the burden of proof upon

the question of ‘‘moral character and good citizenship.”’

It is necessary, at the outset, therefore, to examine what

inferences’ may be drawn ‘from Petitioner’s refusal to

@ * answer. Presumably thq Communist questions are relevant

because activity in the Party may bear on the meral fitness

of an applicant. But the Committee may also have thought

that the simple fact of refusal to answer a relevant ques-

tion, of whatever import, was—in and of itself—direct

evidence of bad character or bad citizenship: It is our

position that, whether the Committee took either or both

‘ views, Petitioner’s refusals to answer in the circumstances’

of this case, do not on any rational view outweigh the

affirmative evidence of ‘‘moral character and good citizen- |

ship” which Petitioner has presented.

‘It will be helpful to note at this time that the Committee

and the Iinois Supreme Court may have based their

action on either of two, other grounds. First, the (‘ourt

may have based“its-action on the supposed incapacity of,

the Petitioner to take the prescribed oath; or, second, by

relying heavily on Mr. Justice Harlan’s statement in

K onigsberg, 353 U. S. 252; 311, that a State may properly

_ deny admittance to any person who refuses to answer any

relevant (and not constifutionally protected) question, the

Court may have made the bare fact of Petitioner’s refusal,

irrespective 6f any character question, the ground upon

which he waa denied admittance. Since.we are presently

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concerned we questions of “moral character and good - -

citizenship”, , these points will be ‘taken up later.

We come then to what, if any, inference of bad character

' may be drawn from Petitioner’ he refusal to answer: Here

the Committee appears to argue itself out of court, for

it says: “We draw no inference of disloyalty or subver- '

sion from applicant’s refusal to answer questions concern-

ing Communist or other subversive organizations.’’ (Peti-

. tion, Appendix p. 26.) This surely would dispose of. the

point were it not for anothef statement by the Committee

majority made earlier in its report.” There, after stating

quite accurately that, in the circumstances of a case such

as this, Konigsberg had held that a Committee might not

draw inferences 6f bad moral character, the Committee

went on to say that Konigsberg nevertheless, ‘‘did not hold

‘that such a condition of a record affirmatively entitled an

applicant to certification.’’ (Petition, Appendix p. 19.)

Thus, having jput itself out of court by one door the

Committee came right back: in by another. It would not

draw inferences of bad charaeter; it wopld simply ask

Petitioner the same questions over again and, if he per-

sisted in his refusal to answer, the Committee would ‘‘not

be acting inconsistently with Konigsberg in’ denying cer-

, tification.’’ (Petition,» Appendix p. 19.) ‘It is hard to

_ imagine a more transparent disregard of the plain import

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of this court’s holding in Konigsberg. The Committee’s

questions. had no greater propriety, and Petitioner’s objec-

tions were no less valid, after Konigsberg than before.

Despite its denial, therefore, it would seem clear that: the

Committee may well have placed reliance on Petitioner’s

refusals as showing a lack of “‘moral character and good

citizenship.’’ Not, to be sure, in order to find that he lacked.

character, but to justify its refusal to certify him for ad-

mission—which comes te the‘ same thing.

Likewise, it seems clear enough that the Committee

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placed reliance on Retitioner’s refusal to answer, as in

itself showing a lack of ‘‘moral character and good citizen-

ship.’’ Indeed, the Committee says as muth: ‘‘By reason

of applicant’s own-recalcitrance he has failed to demon-

strate the good moral character and general fitness to

" practice law necessary. for admission to the Bar.’’ (Petition,

Appendix p. 27.) The Illinois court, at the conclusion of

its per curiam opinion, repeats the Committee’s statement -

almost word for word. (Petition, Appendix p. 53.) Thus,

again, the Illinois Court and its Committee on Character

and Fitness would circumvent the holding in Konigsberg.

_Tf it is improper, on this record, to draw inferences of bad

moral character from Petitioner’s refusal to answer, then

_it is improper to call his refusal ‘‘recalcitrance,’’ as if that

“ were a brand new test of character.

It is* hot necessary to labor the point for surely it is

plain beyond words. that whichever ground the Illinois

court takes, it is met with the same ‘objection. Why did

Petitioner refuse to ‘answer the Committee’s questions?

The regord is very clear that he did so because he sincerely .

regardéd them as an invasion of his Constitutional rights

under the First and Fourteenth Amendments, not the

Fifth. He has had thé moral courage, moreover, through

a long and trying time to insist upon his position. Nor

is there any suggestion in the record—and we. know of

tone—to indicate that he feared to answer. .The Commit-

tee itself resolved the point when it said: ‘“‘We have

received no information from any outside source which.

> would cast any doubt on applicant’s loyalty or which would

tend to connect him in ‘my"manner with any subversive

sroup.”” (Petition, Appendix pp. 11-12.) :

A refusal to answer the Committee’s questions in these

circumstances is not “‘recalcitrance,’’ but’ adherenée to

. Principle. The questions were asked initially, and from

, time to time over the several years, without any proper

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foundation tne laid for them. Petitioner asks, since » he

believed these questions to be. improper, what was he to

do? The answer is that he was to persist in his refusal,

as he has done with dignity and courtesy. So far from

giving .rise to a permissible inference of bad character,

therefore, or of. bad ‘‘recalcitrance,’’ the contrary is true.

For, as-Mr. Justice Black said in Konigsberg, at p. 273:

A bar composed of lawyers of. good: character is-a

worthy objective but it is unnecessary to sacrifice vital

freedoms in order to: obtain that goal. It is also im-

portant both to society and the bar itself that lawyers ©

be unintimidated—free to think, speak, and act as metm-

-bers of an Independent Bar.

There i is nothing puzzling about Petitioner’ s silence a .

asked about his religious and Communist affiliations, except

to those who have forgotten the proud American traditions

of personal independence. The question here is not whether .

Petitioner correctly measured his rights under the Con-

stitution, for that is a matter of judgment; -the question

here i is one of character.

Petitioner has supplied the Committee with affirmative

: evidence of his ‘‘moral character and good citizenship”

which, except for his refusals to answer, fully satisfy his

burden of proof. This is really not questioned. _ We submit

further that’ Petitioner’s refusal to answer Committee

questions in the circunfstances of this case, does not cast

any ‘rational doubt on the affirmative evidence of good

character which Petitioner has furnished to the Committee.

When 0 is taken from 100 it will not do to find that only

49 is left. It follows, that ‘the Illinois court acted capri-

ciously and with no rational basis for its actions in viola--

- tion of the 14th Amendment when it denied Petitioner's -

application to be admitted to the Bar of Illinois. Fiske ¥.

Kansas (1926), 274 U. 8. 380.

»

u

15

_ B. The Oath as a Basis of Denial.

The Illinois Supreme Court, at the close of its per curiam

‘opinion, cites Barenblatt v. United States (1959), 360 U. S.

109, to the point that ‘‘the relevance’ of an inquiry as to

whether an applicant for admission to the bar is a member __-

of the Communist-Party-is-no longer debatable.” Rele-

vancy, of course, has never been the issue. I{-@ien goes.on ©

‘to hold~‘that a determination as to whether am applicant

can in\good conscience take the attorney’s cath 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 a member of a group dedicated to the over-

throw of the government of the United States by force

and violence.’’ (Petition, Appendix, Pp. 53, emphasis added.)

The Court does not say that it draws any inference of

bad character from Petitioner’s refusals. Indeed, it care-

fully points. out that the Committee ‘‘drew. no inferences

of disloyalty .or subversion from Anastaplo’s consistent

refusals to answer questions concerning Communist or

other subversive affiliations.’ (Petition, Appendix p. 52.)

Whether this is true or not, is now beside the point; the

Court bases its decision here on the*bare proposition that

it is ‘impossible’? for an applicant, who refuses to answer

‘such questions, to take the oath prescribed by the Illinois

legislature for applicants to the Bar.

In explanation of its position the Court states thate“a

strong ‘public interest Supports the interrogation of appli-

cants for admission to the bar on their adherence to dur:

basic institutions and form of government ‘and that this -

public interest overrides an applicdnt’s- purely personal

intefest in keeping such views to himself.” (Petition,

Appendix pp. 52-53.) This statement should be ‘read with -

the Court’s earlier declaration that: ‘*In seeking the privi- -

lege of admission before this Cour:, petitioner must be

16

deemed to have agreed to waive his constitutional right

of free speech against relevant inquiry.’’ In re Anastaplo

(1954), 3 Il..2d 471, 483. The latter is-more explicit and ~

we believe better expresses the Court’s basic viewpoint.

The Illinois Court, of course, is its own best authority for if

this pronouncement, for it can cite no other. . But the result

is that, in Illinois, when the Committee room doors close -

behind an applicant, he has left the United States outside,

his rights under the First Amendment are gone. No

wonder the Committee felt free to question Petitioner at .

Jength upon his religious affiliations, as upon his mémber-

~ ship in this, that or the other political organization. _

even the Committee finally. had the grace to o abandon its

religious inquiries, which, of course, had some relevance

upon Petitioners’ ability to take an attorney’s oath. It

did so, however, only after Petitioner had_ painstakingly

pointed out to it that the case upon which it relied, Railtoad

~ Company.v. Rockafellow (1856), 17 Tll..541, had been repu-

diated in Illinois nearly a century ago. ( Petition, Appendix,

p. 58.) | ie

What precisely then is the ‘‘public interest’’ which the

Illinois Court says will override First Amendment rights!

It says it is the need to interrogate applicants ‘‘on.their

adherence to our basic institutions and form of govern-

ment.’’ But if any one thing is clear on this record, that

is just what the Committee did-do, as Justice Bristow ably

points in his dissenting opinion (Petition, Appendix, pp.

53-78). Petitioner has answered, at great length, all of |

_the- Committee’s questions as to his ‘‘adherence to our

basic institutions and form, of government.’’ N or does the

Court in its per curiam opinion .indicate the contrary,

except as his bare refusal to answer concerning his religious _

and political affiliations, is such a showing. —

' Petitioner states, moreover, that he fully: understands

the nature of the attorney/s oath, and he has assured the

4

ees oa 17

Committee.that he is entirely willing. to give such an: oath,

without any qualification. Any doubts which the writers of |

the Court’s per curiam opinion might have had as to.

| ,_Whether it would be possible for him to do 80, should have

"been set at rest by the fact that Petitioner served 38 months

“ in active service with the Air Force, in-the Pacific, Euro-

pean and North. African theatres of war, just prior to

- entering law school in the Fall ‘of 1947. (See Petition,

Appendix, p. 62.) Petitioner had thus already taken an -

oath to piteciiper institutions, and dernenstrated that he

knew hew to fulfill such an oath, but as to this, the Court:

imajority simply keeps silent. | | :

' We submit, therefore, that there is no substance in the

Illinois Court’s declaration, that it is ‘impossible’? for

Petitioner to take. the attorney’s oath. Hence, Petitioner

has been Aenied his rights to equal treatment under the

laws, as guaranteed : by the. Fourteenth Amendment. The

' Communist question, of course, is relevant, but a refusal

to answer, in thé circumstances of this ease, has very little

. weight. The Court is not at liberty to keep the First

Amendment out of -its Committee rooms, when it is fairly

. invoked by an applicant. - Justices Schaefer and Davis, in

_ their dissefitfifg opinion make ihe point this way: ‘‘We do,

not see in this record any: basis for a. finding that the

-applicant’s. refusal to answer raises a doubt as to the.

sincerity with which he takes the oath to support the State

and Federal constitutions.” (Petition, Appendix p. 80.)

_. We suggest; moreover, this position js not at variance |

-with In Re Summers (1945), 325 U. S. 561. Bat, if so, it is

: Tespectfully submitted that ihe majority in Summers pro-

ceeded on an erroneous premise,—that the Illinois Court

perforce had whatever power the State might have. Mr.

Justice Reed put it this way (p. 570-1) : “‘The responsibility

for choice as to the personnel of its bar rests with Illinois,’’-

Hence, since the Illinois Court had defied admission, the

18 :

State was taken to have done so. ‘ But: the Illinois legis-

lature did not give the Illinois court earte blanche to do

as it saw fit; it merely prescribed an oath to be adminis-

_ tered judicially according to rational and customary stand-

ards. And,.it is submitted, by any rational test Summers

fully established his ability to take the oath. ing

For the same reason, it is respectfully suggested that the

Illinois Court abused its powers in this case, when it

deélared that it is.‘‘impossible’’ for an.applicant to take

the attorney’s oath, except he answer this or that question

of the Committee. Conditions of that sort are plainly for

the legislature, not the court, to write. Given an inch by |

Summers, the court now. would take a country mile.

Nor may the Court take extra power to itself by claiming

that it would be administratively convenient to require

applicants to answer Committee questions under penalty °

-of being declared ineligible to take the’oath. As to that.

' Justices Schaefer and Davis dissenting, were quite explicif:

‘*To refuse admission, therefore, would, amount only to an

- assertion of power beyond that which is required in order .

to determine the question’ before the court.”’ (Petition,

Appendix, p. 80.) = ° 7

In sum, if the Ilinois Court’s position i is t0 be sustained,

this Court must give its sanction to an extravagant asser-

tion of court power, not only to usurp functions of the

Illinois Legislature, but to sweep aside as well those rights

of free speech which are guaranteed to citizens under the

First Amendment. Either would be an appalling thing

to do.

. C. Automatic Grounds for Denial.

We now reach the point that Committee arid Court may

have treated ‘the bare refusal to answer any relevant ques-

tion, of whatever import, ds in itself a sufficient basis for

barring the Petitioner, quite apart from any question of

7. * €

character. If this were the basis upon which the Court and

Committee acted, it would make. more intelligible their in-

cdifference to the affirmative evidence of good character in

_ the’reeord and to the“abundant evidence that the Petition-

er’s@Bjection was in good faith adherence to principle. For

if the operative Tule is that a refusal to answer a relevant —

question 1 automatically bars the applicant, then other evi-

- dence iti the record is.indeed not relevant because no matter

how strong it is, it cannot alter the fact that the applicant -

has refused to answer. — , aed) ret

It is in order, therefore, to shift to an analysis of the

‘Merits, as a constitutional matter, of a rule which makes.

refusal to answer in itself the basis for:a‘bar. It should

be emphasized at ‘the outset, however, that this puts the

issue far, more favorably than Illinois deserves, First,

Illinois does not: explicitly have such a rule, announced

openly and publicly, and applied with an even hand to all

applicants. Nor did the Committee clearly warn the"Peti-

tioner that it would apply such a rule in his case.’ Thus,

if Illinois is to have such a rule, it will-lie concealed in

the guise of evidential determinations in particular cases

and will be applied more or less°as a matter of Com-

mittee whim. We lack, then, the weighty and: deliberate

judgment, of. the appropriate Illinois authorities that

the refusal to answer relevant questions (not an inva-

sion of Constitutional privilege): is in and of itself a suffi-

cient basis for barring an applicant. But of one thing we -°

May be-sure, if. the Illinois Court is sustained in its present ;

action, such a rule will have become the operational law

of Illinois, more or less by default.

"We are brought, therefore, to the other wing of. the

| Konigsberg case, and’ to the question which this: Court

expressly reserved. The Court there said:° ‘If and when

a State makes failure to answer a question an‘ independent

Bround for exclusion from the Bar, then this Court, as the

tag 8

ie

Igo

cases aris¢, will have to determine whetKer the exclusion

is constitutionally permissible. a (353 U..S. 252, 261.) It is

plain, of; course, that if this case is reversed upon the

ground ‘that.the-IHinois Court applied an irrational test .

of ‘‘moral.character and geod citizenship,”’ the question

is not reached. . m

oe

Before going on it should be pointed out that Mr. Justice

“Black ig speaking of ‘‘failure to answer a question’’; Mr.

_ Justice Harlan, in his, dissent, states that an applicant's -

refusal to answer any questions *‘which are reasorably

relevant to his qualification . and which do not invade a:

constitutionally privileged area’? is ‘in and of itself ground

* for rejecting the applicant. And, he says: ‘‘An applicant

might state with the utmost sincerity ‘that he believed that.

such information was none of the’ cémmittee’ s_ business;

yet it must be clear that his application could be rejected.”

Kongsberg, pp. 311-312. - We take it that this fairly states ©

the issue and that Illinois, whether explicitly: or not, has

sought to bring its action within Mr. J ustice Harlan’s

. language.

,Since Mr. Justice Harlan: silos nothing. turn on the

character ef.the applicant, it makes it unnecessary for- him

to consider the issues thus far discussed. Of course, a staie

could: have a rule that any applicant’s failure to answer any

-. question which does not invade constitutionally privileged

ground, as marked out by this Court’s latest decisions,

would of itself be a basis for denying admission. We say —

‘* nothing as to whether a State might properly refuse ad-

mittance to an applicant who refused to reveal -his. past

> addresses or matters of that sort, since it is scarcely realis-

tic to suppose that. an applicant would take such a position. —

But we do submit: that a bare refusal to answer in the

" sensitive. civil.rights area cannot, be made a’ valid ground

_ for denying admission. |

¢ The vice in Mr. Justice Harlan’ 8 position, we submit,

x

21

is that it would set up an irrational classification. ‘The :

present case will afford illustration. Faced with the Com- -

munist questian, as posed by the Committee. without any

adequate foundation being laid, many applicants would.

Canswer readily’ enough, perhaps because they did not. even

appreciate that a question of privilege might be involved.

A second group, although inwardly irritated, might swal-

low their indignation and answer. But a few -hardy citi-

zens, including Petitioner, would refuse to answer in a

good faith belief that the questions were improper. Their

applications would be denied, even though the Committee

had been furnished with satisfactory evidence of moral

character and geod citizenship., Thus the rule, in operation,

would discriminate between applicants on grounds per-

versely unrelated to their character and intellectual integ-

rity. It would prefer illiteracy or servility to candor and

independence. er | i

A State, of course, may set up standards for admission

to its Bar. /But it requires no-citation of authority to say

that its’ regulations must-be rationally designed to accom-

»

plish the State’s purposes. A rule of admission which,

in addition to requiring legal training and good moral

¥ gal t |

character, insisted as well on.a knowledge of carpentry, or

on a certain avoirdupois—matters having no conceivable |

relation tothe practice of law—would surely be stricken‘

down as an unfair and irrational classification. So, too,: .

it is ‘submitted, ,must’ a court-imposed ‘rule ‘requiring an

applicant to answer as in this case, or be denied admission,

since it operates in reverse: to exclude an able man with

intellectual integrity. ais rah .

‘The closest legal analogy which might be applied to

justify a Committee on Character and Fitness in denying. -

om,

admission for a refusal to anawer its questions is that of...

contempt. Indeed, the Mllinois ‘Court appears to-have relied

heavily on Barenblatt v. United States (1959), 360 U. S. 109.

’ *-

S

It is tru that a witness before a Congressional committee,

for example, if he refuses to answer about any possible

Communist ties, must do so at his peril. If the question is

held to be proper, the witness’s refusal, regardless of good

faith, may he punished as. the crime of contempt of Con-

- gress. :

' But the function of the Bar Committee is not to

punish applicants but to pass on their qualifications as —

future members of the Bar... As Justice Bristow put it in.

‘his dissenting opinion: “That body is not an Un-American

Activities Committee charged with investigating Commu-

hists, with power to require—indirectly—non-communist

oaths on pain, of denial of admission t&’the bar. Nor is it

conducting a contempt. proceeding with a denial of the right |

to practice law imposed as punishment for refusal to answer

questions which the Committee .regards as ‘proper’. 7

(Petition, Appendix, p. 74.)

It will be: recalled, that Justice Traynor in the secoeid

Konigsberg case was moved to suggest that in order to

-avert ‘‘grave danger to freedom of speech’’ the burden:

on sensitive issues should be shifted to the examiners. Per-

haps,. the Illinois Committee was ‘given its subpoena forms |

virtually unused, for just such a purpose. At all events,

we share Justice Traynor’ s concern and we suggest that

the ambit of constitutional protection should not be strictly

econfined—as ‘at a razor’s edge—to only those: questions

which are clearly within the constitution, but that a penum-

bra should be recognized where good faith, non-frivolous

objection in principle can be made without severe penalty.

Only such a rule will be congenial to the traditions of an »

‘independent bar.

93°

D. Authorities Distinguished.

Various cases have been cited and relied upon, by the

Illinois Committee on Character and Fitness and the IIli-*

nois Supreme Court, as a basis for denying the Petitioner

in this case, which seem to us to be clearly distinguishable.

In re Summers (1945), 325 U. S. 561, might seem relevant |

_ since this Court affirmed<the action. 6f Illinois in denying

admission to its bar to.a conscientious objector to military

service. However, Summers. was premised, as we noted

above, on the erroneous assumption that the state court

had full discretion in setting the conditions for admission

to the Illinois bar. Further, the majority in Summers re- .

lied heavily upon the naturalization cases, United States v.

Schwimmer (1929), 279 U. S. 644, and United States v.

MacIntosh (1931), 583 U. S. 605, which were explicitly over-

ruled in Girouard v. United States (1945), 328 U. S, 61, 69.

For these reasons we submit that Summers i is no longer a

controlling precedent. .

Again, Kimm v: Rosenberg (1960), 363 U.S, 40 eo

seem relevant since there amalien ina deportation proceed-

ing, who refused ‘to answer shout Communist affiliations,

was deemed to have failed to meet his burden of proof that

he was eligible for a stay of deportation. However in Kimm

the refusal to answer was keyed to a claim of the privilege

against self-incrimination under. the Fifth Amendmént and -

. the suspension of a deportation order was expressly held to

- be agmatter ‘‘of administrative _grace,’? There is, there-

- fore, on two grounds a wide distinction between Kimm and

the present’ case, where there is no claim of the Fifth

Amendment privilege and ‘where admission to the bar can

searcély be classified as a matter of administrative grace.

The wide difference between refusal to answer keyed

to a claim. of privilege under the Fifth. Amendment and

the refusal to answer in the present: case: also affords, we

7

—

a4

think, a sufficient basis for distinguishing such cases as

Orloff v. Willoughby (1953),.345 U. S. 83, Lerner. v. Casey

(1958), 357 U. S. 486, and Beilan v. Board of Public Educa

tion (1958), 357 U. S. 399. Further, Orloff involved the

granting of a commission in the armed forces, and Lerner

_and. Beilan involved public employment; hence, all. three

cases involved a status far different from admission to

the bar, where the public interest requires qualities of inde-

pendence and intellectual integrity. |

Garner v. Board of Public. Works of Los Augeles (1951),

341 U. S. 716. Here requirement of both a non-communist

oath and an affidavit as to whether affiant is or ever was

a member of the Communist party were upheld as condi-

tions for employment by the City of Los Angeles. Refusal.

to. take the oath or to sign the affidavit were held valid

grounds for discharge. It might be urged that it would

have made ‘no difference to the result in Garner had peti-

tioners shown that their refusal was keyed to a good faith

objection in principle to the oath and the affidavit. Several

distinctions between Garner and the preseni.case should

be noted, however. First, Garner again involved public em-

ployment, not admission to the bar; second, the ‘issue of

good faith objection in principle was ‘not presented to the

Court and was not passed upon by it; and, finally, the. re-

quirements-in Garner were announced publicly and applied

with an even hand to all applicants-for public employment.

The asking of the Communist question by way of oath in

; the case of all applicants may present quite different issues

of constitutionality than does the singling out of a particu-

lar applicant and asking the ‘question of him, all without

prior notice, without laying, any proper foundation for the

question and without. adequate warning of the consequence:

of a refusal to answer, as in the present case.

25

CONCLUSION.

In Konigsberg, Mr. Justice Black suggested that there

' were two possible routes by which a State might have

barred an applicant who refused to answer a relevant ques- *

tion; it might have weighed the evidence on the question

. of moral character; or, it might have been applying a rule

that refusal per se bars. This distinction is useful because |

the constitutional issues raised by the two routes are some-.

what different. In the first instance the action may be

invalid because it is an irrational judgment on the -évi-

dence; in the second, because the rule employs an arbitrary

criterion for selection to the bar. ~ ee

In the instant case, Illinois may have taken either of ~

‘these two’ routes. Insofar as it acted by way of a judg-

ment of fact, we submit that there ig no basis on this record

for its ‘conclusion thgt the I Petitioner. failed to meet ‘his

burden of producing evidence of ‘‘moral character and good’

: ‘citizenship, ”” - Insofar as it, acted by way of an implicit

tule that the refusal to answer is in and of itself enough,

we submit it was employing an irrelevant and irrational

criterion for admission to the bar that could arbitrarily |

serve only to give preference. to the servile, over the inde-

pendent and candid.

We submit, therefore, that however Illinois’ action in

denying George Anastaplo admission to its bar is in-

terpreted, it was unconstitutional action under the Four-

teenth Amendment. And we respectfully ask the Court to 7

reverse the judgment below. In so. doing, the Court will not

only do justice in this case, but it will be vividly reaffirming

for generations of copleents to come, the high ia that

»

.

——— s

' candor, courage, and independence of mind have as attri-

butes of that character and fitness which make the lawyer.

mene eny submitted,

’ Harry Kauvin, JR:,

-Roscoz T. STEFFEN,

-, ¢/o American Civil Liberties

Union, Illinois Division,

19 South La Salle Street,

Chicago 3, Illinois, - -

Counsel for Amicus Curiae.

—.