Opinion — Baird v. State Bar of Arizona

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NOTICE : This opinion is subject to formal revision before publication

in the preliminary print of the United States Reports. Readers are re-

uested to notify the Reporter of Decisions, Supreme Court of the

nited States, Washington, D.C. 20543, of om Se hical or other

formal errors, in order that corrections may made before the pre-

liminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 15.—Octoser Term, 1970

Sara Baird, Petitioner,

v.

State Bar of Arizona.

On Writ of Certiorari to the

Supreme Court of Arizona.

[February 23, 1971]

Mr. Justice Back announced the judgment of the

Court and delivered an opinion in which Mr. Justice

Dovetas, Mr. Justice BRENNAN, and Mr. JUSTICE

MARSHALL join.

This is one of two cases now before us from two

different States in which applicants have been denied

admission to practice law solely because they refused

to answer questions about their personal beliefs or their

affiliations with organizations that advocate certain

ideas about government.' Sharp conflicts and close divi-

sions have arisen in this Court concerning the power of

States to refuse to permit applicants to practice law

in cases where bar examiners have been suspicious about

applicants’ loyalties and their views on Communism and

revolution. This has been an increasingly divisive and

bitter issue for some years, especially since Senator

Joseph McCarthy from Wisconsin stirred up anti-Com-

munist feelings and fears by his “investigations” in the

early 1950's. One applicant named Raphael Konigs-

berg was denied admission in California and this Court

reversed. AKonigsberg v. State Bar, 353 U.S, 252 (1957).

The State nevertheless denied him admission a second

time, and this Court then affirmed by a 5-to-4 decision.

366 U. S. 36 (1961). An applicant named Rudolph

1 The other is No. 18, Jn the Matter of the Application of Martin

Stolar. See also No. 49, Law Students Civil Rights Research Coun-

cil Inc. v. Wadmon.

PR atte Manel eeeiaietiiaetin |

2 BAIRD v. STATE BAR OF ARIZONA

Schware was denied admission in New Mexico and this

Court reversed, with five Justices agreeing on one

opinion, three Justices on another opinion, and one

not participating. Schware v. Board of Bar Examiners,

353 U. S. 232 (1957). In another case an applicant

named George Anastaplo was denied admission in Illi-

nois on grounds similar to those involved in Konigsberg

and Schware, and the denial was affirmed by a 5-to-4

margin. In re Anastaplo, 366 U.S. 82 (1961). See also

In re Summers, 325 U. S. 561 (1945). With sharp

divisions in this Court, our docket and those of the

Courts of Appeals have been filled for years with litiga-

tion involving inquisitions about beliefs and associations

and refusals to let people practice law and hold public

or even private jobs solely because public authorities

have been suspicious of their ideas.* Usually these de-

nials of employment have not been based on any overt

acts of misconduct or lawlessness, and the litigation has

continued to raise serious questions of alleged violations

of the First Amendment and other guarantees of the

Bill of Rights.*

The foregoing cases and others contain thousands of

pages of confusing formulas, refined reasonings, and

puzzling holdings that touch on the same suspicions and

fears about citizenship and loyalties. However we have

2 See, e. g., Adler v. Board of Education, 342 U.S. 485 (1952);

Beilan v. Board of Education, 357 U. S. 399 (1958); Elfbrandt v.

Russell, 384 U.S. 11 (1966); Keyishian v. Board of Regents, 385

U. S. 589 (1967); United States v. Robel, 389 U. S. 258 (1967).

*See the cases cited in n. 2, supra. See also Shelton v. Tucker,

364 U. S. 479 (1960); American Communications Assn. v. Douds,

339 U.S. 382, 445 (1950) (Buiack, J., dissenting); ef. Bates v. Little

Rock, 361 U. S. 516 (1960); Speiser v. Randall, 357 U. S. 513

(1958); Wilkinson v. United States, 365 U.S. 399 (1961); NAACP

v. Alabama, 357 U. 8. 449 (1958); Brandenburg v. Ohio, 395 U. S.

444 (1969).

_—

BAIRD v. STATE BAR OF ARIZONA 3

concluded the best way to handle this case is to narrate

its simple facts and then relate them to the 45 words that

make up the First Amendment.

These are the facts.

The petitioner, Sara Baird, graduated from law school

at Stanford University in California in 1967. So far as

the record shows there is not now and never has been

a single mark against her moral character. She has

taken the examination prescribed by Arizona, and the

answer of the State admits that she satisfactorily passed

it. Among the questions she answered was No. 25.

which called on her to reveal all organizations with

which she had been associated since she reached 16 years

of age.‘ This question she answered to the satisfaction

of the Arizona Bar Committee. Consequently there is

no charge or intimation that Mrs. Baird has not listed

the organizations to which she has belonged since be-

coming 16. In addition, however, she was asked to

state whether she had ever been a member of the Com-

munist Party or any organization “that advocates over-

throw of the United States Government by force or

violence.” * When she refused to answer this question,

the Committee declined to process her application fur-

ther or recommend her admission to the bar.“ The

Arizona Supreme Court then denied her petition for

an order to the Committee to show cause why she should

not be admitted to practice law. We granted certiorari.

394 U.S. 957.

In Arizona it is perjury to answer the bar committee’s

questions falsely, and perjury is punishable as a felony.

* Brief for Petitioner, App., at 18.

* Question No. 27, Application for Admission. Brief for Peti-

tioner, App., at 18.

° Response of the Committee on Examinations and Admissions to

Order to Show Cause. Brief for Petitioner, App., at 4.

Seis Saeed aa SRR aS i aan]

4 BAIRD v. STATE BAR OF ARIZONA

Ariz. Rev. Stat. 13-561 (1956). In effect this young lady

was asked by the State to make a guess as to whether

any organization to which she ever belonged “advocates

overthrow of the United States Government by force or

violence.” There may well be provisions of the Federal

Constitution other than the First Amendment that would

protect an applicant to a state bar from being subjected

to a question potentially so hazardous to her liberty.

But whether or not there are other provisions that pro-

tect her, we think the First Amendment does so here.

That Amendment, made applicable to the States by the

Fourteenth, forbids any “law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble... .” Mr.

Justice Roberts, in referring to the First Amendment’s

guarantee of freedom of religion, said:

“Thus the Amendment embraces two concepts, free-

dom to believe and freedom to act. The first is

absolute but, in the nature of things, the second

cannot be. Conduct remains subject to regulation

for the protection of society.” Cantwell v. Con-

necticut, 310 U. S. 296, 303-304 (1940).

See also Schneider v. Irvington, 308 U. S. 147, 160-161

(1939); West Virginia Board of Education v. Barnette,

319 U. S. 624, 642 (1943). And we have made it clear

that: “This conjunction ofNiberties is not peculiar to

religious activity and institutions alone. The First

Amendment gives freedom of mind the same security

as freedom of conscience.” Thomas ys po U.S.

516, 531 (1945). The protection of the First sig

ment also extends to the right of association. As w

said in Schneider v. Smith, 390 U. S. 17, 25:

“The First Amendment’s ban against Congress

‘abridging’ freedom of speech, the right peaceably

/

S22 22 ae Fe eee ee -

BAIRD v. STATE BAR OF ARIZONA 5

to assemble and to petition, and the ‘associational

freedom’. . . that goes with those rights create a

reserve where the views of the individual are made

inviolate.”

See also Shelton v. Tucker, 364 U. S. 479, 485-487

(1960); Bates v. Little Rock, 361 U. S. 516 (1960) ;

N. A. A. C. P. vy. Alabama, 357 U. S. 449 (1958).

The First Amendment’s protection of association pro-

hibits a State from excluding a person from a profession

or punishing him solely because he is a member of a par-

ticular political organization or because he holds certain

beliefs. United States v. Robel, 389 U.S. 258. 266 (1967);

Keyishian y. Board of Regents, 385 U.S. 589, 607 (1967).

Similarly, when a State attempts to make inquiries about

a person’s beliefs or associations, its power is limited by

the First Amendment. Broad and sweeping state in-

quiries into these protected areas, as Arizona has engaged

in here, discourage citizens from exercising rights pro-

tected by the Constitution. Shelton v. Tucker, supra;

Gibson y. Florida Legislative Investigation Committee,

372 U. S. 539 (1963); Cf. Speiser v. Randall, 357 U. S.

513 (1958).

When a State seeks to inquire about an individual’s

beliefs and associations a heavy burden lies upon it

to show that the inquiry is necessary to protect a

legitimate state interest. Gibson v. Florida Legislative

Investigation Committee, supra, at 546. Of course Ari-

zona has a legitimate interest in determining whether

petitioner has the qualities of character and the profes-

sional competence requisite to the practice of law. But

here petitioner has already supplied the committee with

extensive personal and professional information to assist

its determination. By her answers to questions other

than No. 25, and her listing of former employers, law

school professors, and other references, she has made

available to the committee the information relevant to

6 BAIRD v. STATE BAR OF ARIZONA

her fitness to practice law.’ And whatever justification

may be offered, a State may not inquire about a man’s

views or associations solely for the purpose of with-

holding a right or benefit because of what he believes.

Much has been written about the application of the

First Amendment to cases where penalties have been

imposed on people because of their beliefs. Some of

what has been written is reconcilable with what we

have said here and some of it is not. Without

detailed reference to all prior cases, it is sufficient to

say we hold that views and beliefs are immune from

bar association inquisitions designed to lay a founda-

tion for barring an applicant from the practice of law.

Clearly Arizona has engaged in such questioning here.‘

7 Respondent has argued that even when an applicant has

answered question 25, listing the organizations to which she has

belonged since the age of 16, question 27 still serves a useful and

legitimate function. Respondent urges:

“Assume an answer including an organization by name such as

‘The Sons and Daughters of I Will Arise.’ This could truly be a

Christian group with religious objectives. But it could also be an

organization devoted to the objectives of Lenin, Stalin or any other

deceased person whose teachings and objectives were not conducive

to the continued security and welfare of our government and way of

life.” Brief for Respondent, at 8.

The organizations petitioner listed in response to question 25

were: Church Choir; Girl Scouts; Girls Athletic Association; Young

Republicans; Young Democrats; Stanford Law Association; Law

School Civil Rights Research Council. Respondent does not state

which of these organizations may threaten the security of the

Republic.

8 The committee urges that it is entitled to demand an answer to

question 27 because:

“Unless we are to conclude that one who truly and sincerely

believes in the overthrow of the United States Government by

force and violence is also qualified to practice law in our Arizona

courts, then an answer to this question is indeed appropriate. The

Committee again emphasizes that a mere answer of ‘yes’ would

not lead to an automatic rejection of the application. It would

BAIRD v. STATE BAR OF ARIZONA 7

The practice of law is not a matter of grace, but of

right for one who is qualified by his learning and his

moral character. See Schware v. Board of Bar Exam-

iners, supra, and Ex parte Garland, 4 Wall. 333 (1866).

This record is wholly barren of one word, sentence. or

paragraph that tends to show this lady is not morally and

professionally fit to serve honorably and well as a mem-

ber of the legal profession. It was error not to process

her application and not to admit her to the Arizona Bar.

The judgment of the Arizona Supreme Court is reversed

and the case remanded for further proceedings not incon-

sistent with this opinion.

It is so ordered.

For opinion of Mr. Justice Har.an dissenting in this

case see No. 18.

lead to an investigation and interrogation as to whether the appli-

cant presently entertains the view that a violent overthrow of the

United States Government is something to be sought after. If

the answer to this inquiry was ‘yes’ then indeed we would reject

the application and recommend against admission.” (Emphasis

added.) Memorandum in Support of Response to Petition for

Order to Show Cause, Brief for Petitioner, App., at 5-6.

jose te AMEE sas WANA Cee SO oe ARTE MED a Dhan, Feo a TER al OT

SUPREME COURT OF THE UNITED STATES

No. 15.—OctToser Term, 1970

Sara Baird, Petitioner, ;

a On Writ of Certiorari to the

; Supreme Court of Arizona.

State Bar of Arizona. ,

[February 23, 1971]

Mr. Justice STEWART, concurring.

The Ccurt has held that under some circumstances

simple inquiry into present or past Communist Party

membership of an applicant for admission to the Bar

is not as such unconstitutional. Konigsberg v. State

Bar, 366 U.S. 36; In re Anastaplo, 366 U.S. 82.

Question 27, however, goes further and asks appli-

cants whether they have ever belonged to any organi-

zation “that advocates overthrow of the United States

Government by force or violence.” Our. decisions have

made clear that such inquiry must be confined to know-

ing membership to satisfy the First and Fourteenth

Amendments. See, e. g., United States v. Robel, 389

U.S. 258, 265-266; Law Students Civil Rights Research

Council v. Wadmond, post, at 10-11. It follows from

these decisions that mere membership in an organiza-

tion can never, by itself, be sufficient ground for a

State’s imposition of civil disabilities or criminal punish-

ment. Such membership can be quite different from

knowing membership in an organization advocating the

overthrow of the Government by force or violence, on the

part of one sharing the specific intent to further the

organization’s illegal goals. See Scales v. United States,

367 U. S. 203, 228-230; Law Students Civil Rights Re-

search Council v. Wadmond, post.

There is a further constitutional infirmity in Arizona’s

question 27. The respondent State Bar is the agency

2 BAIRD v. STATE BAR OF ARIZONA

entrusted with the administration of the standards for

admission to practice law in Arizona. And the respond-

ent’s explanation of its purpose in asking the question

makes clear that the question must be treated as an

inquiry into political beliefs. For the respondent ex-

plicitly states that it would recommend denial of admis-

sion solely because of an applicant’s beliefs that the

respondent found objectionable. Cf. Wadmond, post, at

7-8. Yet the First and Fourteenth Amendments bar |

a State from acting against any person merely because

of his beliefs. EF. g., West Virginia State Board of Edu-

cation v. Barnette, 319 U. S. 624, 642; Cantwell v.

Connecticut, 310 U. 8. 296, 303-304. Cf. Carrington v.

Rash, 380 U.S. 89, 94.

—

SUPREME COURT OF THE UNITED STATES

No. 15.—Octoser Term, 1970

Sara Baird, Petitioner,

v.

State Bar of Arizona.

On Writ of Certiorari to the

Supreme Court of Arizona.

[Feoruary 23, 1971]

Mr. Justice BLackKMUN, with whom THe CHIEF

Justice, Mr. Justice Haran, and Mr. Justice WHITE

join, dissenting.

This, for me, is not at all a case involving mere

personal beliefs on the part of Sara Baird.

I have necessarily assumed, and I trust not errone-

ously, that Konigsberg v. State Bar of California, 366

U. S. 36, and Jn re Anastaplo, 366 U.S. 82, both decided

on April 24, 1961, have remained good law despite the

Court’s then close division (Justice HARLAN and Justices

Frankfurter, Clark, Whittaker, and Srewart in the ma-

jority; Justice Buack, Chief Justice Warren, and Jus-

tices DoucLas and BRENNAN, dissenting). Neither case

has ever been expressly overruled. Neither is now ex-

pressly overruled. In each of the cases the Court de-

cided, at the very least, as Mr. Justice Stewart puts

it in his separate concurrence here, that “under some

circumstanees simple inquiry into present or past Com-

munist Party membership of an applicant for admission

to the Bar is not, as such, unconstitutional.”

I think the Court really decided more than that. I

say this because (a) in Konigsberg the applicant had

“reiterated unequivocally his disbelief in violent over-

throw, and stated that he had never knowingly been a

member of any organization which advocated such

action,” 366 U. S., at 39; (b) the Court stated that it

thought it “clear that the Fourteenth Amendment's

protection against arbitrary state action does not forbid

a State from denying admission to a bar applicant so

long as he refuses to provide unprivileged answers to

questions having a substantial relevance to his qualifi-

cations,” 366 U. S., at 44; that

“We likewise regard as untenable petitioner’s con-

tentions that the questions as to Communist Party

membership were made irrelevant either by the fact

that bare, innocent membership is not a ground of

disqualification or by petitioner's willingness to an-

swer such ultimate questions as whether he himself

believed in violent overthrow or knowingly belonged

to an organization advocating violent overthrow.”

366 U.S., at 46;

and that,

“It would indeed be difficult to argue that a belief,

firm enough to be carried over into advocacy, in

the use of illegal means to change the form of the

State or Federal Government is an unimportant con-

sideration in determining the fitness of applicants

for membership in a profession in whose hands so

largely lies the safekeeping of this country’s legal

and political institutions .... [We regard the

State’s interest in having lawyers who are devoted

to the law in its broadest sense, including not only

its substantive provisions, but also its procedures for

orderly change, as clearly sufficient to outweigh the

minimal effect upon free association occasioned by

compulsory disclosure in the circumstances here pre-

sented.” 366 U. S., at 51-52.

and (c) in Anastaplo it was observed,

“We have also held in Konigsberg that the State's

interest in enforcing such a rule as applied to refusals

to answer questions about membership in the Com-

2 BAIRD v. STATE BAR OF ARIZONA

_—————s

BAIRD v. STATE BAR OF ARIZONA 3

munist Party outweighs any deterrent effect upon

freedom of speech and association, and hence that

such state action does not offend the Fourteenth

Amendment.” (Footnote omitted.) 366 U. S.,

at 89.

Petitioner Baird, however, attacked the integrity of

these cases before the Arizona court and again attacks

their integrity here and claims that, although perhaps

distinguishable, the cases “warrant . . . delimiting, and

perhaps even overruling in light of the trend since 1961.”

In my view, Mrs. Baird has now had striking success

in her overruling endeavor despite the majority’s seem-

ing recognition of the two cases and the separate con-

currence’s definite bow in their direction.

The present case comes here, after argument for the

second time, in a stark and clear posture. Mrs. Baird,

applicant for admission to the Bar of the State of Ari-

zona, possessor of an academic degree from Colorado

College, and possessor of a degree in law from Stanford

University, refuses to answer, other than to say “Not

Applicable,” the 27th inquiry of a questionnaire which

the Arizona Supreme Court, by rule, has made a part

of the application for membership in the State Bar.’

That question reads:

“Are you now or have you ever been a member of

the Communist Party or any organization that advo-

cates overthrow of the United States Government

by force or violence?”

The applicant bases this refusal (a) on the fact that

in her answer to a preceding inquiry, the 25th, she listed

1 See 102 Ariz., pp. XXIV, XXIX, and XX XVII, for the pertinent

provisions of Rule 28 (c) in effect at the time Mrs. Baird submitted

her application. The rule was amended, effective August 1, 1970,

in ways not relevant here. See 106 Ariz. —.

ni,

mites chitin _

4 BAIRD v. STATE BAR OF ARIZONA

the organizations of which she had been a member since

age 16, and (b) on the asserted legal propositions that

to compel her to answer is to deny her First Amendment

rights of freedom of belief and freedom of association,

her Fifth Amendment right not to incriminate herself,

and her Fourteenth Amendment right to due process.

In my view, applicant Baird vastly overstates her

case. Om this record, | would affirm the judgment of

the Supreme Court of Arizona in denying Mrs. Baird's

petition for admission to practice law in the State's

emerte

There are several factors which prompt my conclusion:

1 Mrs Bad & an intelligent and knowledgeable per-

«0 She hedde @ college degree and a graduate degree,

a > o @ aseueoed here. she has demonstrated in the

hh anenateon an acceptable knowledge and mastery

of the law There @ no claim of vagueness or lack of

ae themes on her part of precisely what Question 27

ome wnt or ef wet ot was intended to probe. The appli-

oe ( obpsowely knew the ope of the question and its

ew ore woth the Party and with forceful and violent

overthrew of the Government.

2 Mere Baud s we of the “Net Applicable” response

te (gyestvon 27 » not fully understandable. Of course,

she may have « phrased that answer hurriedly in the

paseng “vought that. with her listing of organizations

in response to Question 25, buttressed by the statement.

“Thos list ineludes all organizations that I can recall at

this time.” and with those organizations on the list

obviously not within the contemplation of Question 27,

the latter question was, indeed, “not applicable.” After

all, she did employ the same “not applicable” answer

on the form in no less than 16 other places; most of

these, because of their conditional context, could well

have been left blank and would have been expected to

ae

BAIRD v. STATE BAR OF ARIZONA 5

be left blank, despite the general instruction that all

questions were to be answered.

Nevertheless she did respond to the inquiry in that

manner and, as her brief states, she now has “declined

to answer” the question. This, then, leaves this litiga-

tion in the posture where the response to Question 27

was not inadvertent and was not the product of any

misunderstanding or mistake, where an answer is now

flatly refused, and where the applicant, perhaps some-

what defiantly, is content to have the record remain as

it is and to have her case won or lost on that record.

This is reminiscent of the obstructionist tactics con-

demned in Konigsberg and Anastaplo.

3. For Mrs. Baird to say that because she had an-

swered Question 25 and had listed her organization mem-

berships since age 16 she need not respond to Question 27

is no answer at all.*. To answer the one question fully

and to refuse to respond to the other embraces an obvious

inconsistency of position, for the two questions are re-

lated. Furthermore, the questions are not duplicative.

By her refusal to answer Question 27, she would place

on the Arizona Committee on Examinations and Admis-

sions * and on the Supreme Court of Arizona the burden

of determining which of the organizations she listed, if

any, was an arm of the Communist Party or advocated

forceful or violent overthrow of the Government. That,

however, is not the task of the Committee or of the

Arizona Supreme Court. It is Sara Baird’s task. It is

a truism, I think, that the Communist endeavor works

beneath the surface as well as in the open and that

?The majority, of course, obviously would hold that Question 25

also was impermissible. /n re Stolar, infra, p. —. Mrs. Baird,

however, appears to have had no hesitancy in answering that inquiry. _

*See Arizona Supreme Court Rule 28 (c).

ere

6 BAIRD v. STATE BAR OF ARIZONA

high-sounding names have been the front and the verbal

shield for something very different from what the name

imports.

4. No one is in a better position to know the aim and

purpose and advocacy of an organization than a member.

Certainly the Committee and the Arizona Supreme

Court, which have other things to do, are not equipped

for the task of checking out the identity of every named

organization, especially one which might follow the

standard of the less said and known, the better. And

Mrs. Baird would place this burden on the Committee

by submitting partial answers. She gives the appearance

of playing a game. The importance of the subject de-

serves better than that.

5. It has been said that the burden is on the applicant.

In re Courtney, 83 Ariz. 231, 233, 319 P. 2d 991, 993

(1957). But a most minimal burden it is. Had she

answered “None” to Question 27, that would have been

the end of the matter in the absence of obvious prevari-

cation. If she were in doubt, the answer “None to my

knowledge” would have accomplished the same result.

She chose neither answer. She chose, instead, to remain

silent and less than candid.

6. The majority, I feel, fail to place the issue in exact

focus. This is not a situation where, as the majority

state, and even would do so in a perjury context, “In

effect this young lady was asked by the State to make

a guess as to whether any organization to which she ever

belonged ‘advocates overthrow of the United States

Government by force or violence.’”’ It falls far short

of guesswork. Mrs. Baird either knew the answer or she

did not know it. If she knew, she coupled her knowledge

with a attempt to conceal. If she did not know, she had

only to state her lack of knowledge. This was no “guess”

and, absent the intent to deceive, it certainly was no

guess fraught with the risks of perjury.

EE en net saath ste ohne ain

BAIRD v. STATE BAR OF ARIZONA 7

7. Although Question 27, concededly, would have been

better phrased had it gone on to inquire as to the appli-

eant’s own knowing participation in, and promotion of,

illegal goals, a realistic reading of the question discloses

that it is directed not at mere belief but at advocacy and

at the call to violent action and force in pursuit of that

advocacy. Contrary to the majority’s conelusion and

to that of the separate concurrence, I find nothing in

this record that indicates that Mrs. Baird automatically

would have been denied admission to the Bar had she

answered Question 27 in the affirmative. The record,

and the Committee’s brief here,‘ disclose exactly the

*“The Committee would again emphasize that it has formed no

judgment as to whether or not Sara Baird should or should not be

recommended for admission to the Bar of this State to this Court.

“The Committee would again emphasize to this Court that if the

answer to question No. 27 is ‘yes’ the Committee will then endeavor

to ascertain if Sara Baird does adhere to the view that the over-

throw of the Government of this State and of the United States by

force and violence would be a desirable objective and that she would

expect to actively support such views. If this is the conclusion

reached by the Committee, it will undoubtedly refuse to recommend

Sara Baird for admission to the Bar of the State of Arizona. Should

the conclusion be that her membership is of a nominal character

and that she does not participate and adhere to the views that a

violent overthrow of our government is desirable, then the Committee

would have no legal basis for refusing to recomend her for admission

to practice law under the decisions of the United States Supreme

Court ....” Brief p. 2.

“- . . The Committee, contrary to the repeated assertions and in-

sinuations to the contrary in Petitioner’s Brief, has also made it

abundantly clear that regardless of the political beliefs and views

of Sara Baird it is only if she is found to actively believe in the

notion and espouses an activist role in implementing the notion that

our government be destroyed by force and violence that a favorable

recommendation will be refused her by the Committee... .” Brief

p. 3.

“~ . . The Committee has not and cannot in good conscience certify

to the Arizona Supreme Court that Sara Baird has the character

8 BAIRD v. STATE BAR OF ARIZONA

opposite. In its Memorandum, filed with the Arizona

court in support of its response to the order to show

cause, the Committee stated that no judgment as to

recommendation or nonrecommendation for admission

had been made; that an affirmative answer to Question

27 would lead to further inquiry as to Mrs. Baird’s ex-

pectation actively to support the objective of violent

overthrow; and that, if her membership is of a nominal

character and she does not participate in the advocacy

views, there would be no legal basis for refusing a recom-

mendation for admission.* The material quoted in the

Court’s footnote 8 is from the body of the Memorandum;

my reading of that material, however, indicates only that

further inquiry is then in order. I do not share the

majority’s interpretation of that material as being di-

and moral fitness to practice law if she does actively support and

advocate the overthrow of the Government of the United States by

force and violence.” Brief p. 6.

“The issue is simple. ‘Is one who believes in and who is willing

to work to undermine and destroy the Government of the United

States qualified to be admitted to the practice of law.’” Brief p. 13.

> The Memorandum states as its conclusion:

“The Committee would again emphasize that it has formed no

judgment as to whether or not Sara Baird should or should not be

recommended for admission to the Bar of this State to this Court.

“The Comittee would again emphasize to this Court that if the

answer to question No. 27 is ‘yes’ the Committee will then endeavor

to ascertain if Sara Baird does adhere to the view that the over-

throw of the Government of this State and of the United States by

force and violence would be a desirable objective and that she would

expect to actively support such views. If this is the conclusion

reached by the Committee, it will undoubtedly refuse to recom-

mend Sara Baird for admission to the Bar of the State of Arizona.

Should the conclusion be that her membership is of a nominal char-

acter and that she does not participate and adhere to the views that

a violent overthrow of our government is desirable, then the Com-

mittee would have no legal basis for refusing to recommend her for

admission to practice law... .”

iii

BAIRD v. STATE BAR OF ARIZONA 9

rected to mere belief. The key words are whether “vio-

lent overthrow ... is something to be sought after.”

That is an inquiry into willingness to participate in

violence.

8. There is talk, of course, in the briefs here about

whether admission to the Bar and receiving authority

to practice law is a “right” or a “privilege.” I am old

enough and old-fashioned enough always to have regarded

it more as a privilege than as aright. I at least thought

that was the tradition. A century ago Mr. Justice

Field referred to the practice of law by a qualified per-

son as a right and not as a matter of the State’s grace

or favor. Ex parte Garland, 71 U.S. (4 Wall.) 333, 379

(1866). The Arizona court has spoken in similar terms.

In re Klahr, 102 Ariz. 529, 531; 433 P. 2d 977, 979

(1967). It could oppositely be stated, with just as much

accuracy, as the Bar in its brief here asserts,° that “one

qualified by character, integrity and learning has the

right to practice law.” Indeed, this is precisely the way

the Arizona court has phrased it: “[T]he practice of law

is not a privilege but a right, conditioned solely on the

requirement that a person have the necessary mental,

physical and moral qualifications.” Jn re Klahr, supra,

102 Ariz., at 531; 4383 P. 2d, at 979. See also Jn re

Levine, 97 Ariz. 88, 90-91, 397 P. 2d 205, 206-207 (1964),

and Jn re Burke, 87 Ariz. 336, 339, 351 P. 2d 169, 172

(1960).

The characterization of Bar admission as a right or as

a privilege may be little more than an exercise in seman-

tics. It seems to me that, whichever it may be, the State,

in granting the authority to practice law, with what

surely is the true privilege, not the right, to be entrusted

with a client’s confidences, aspirations, freedom, life it-

self, property, and the very means of livelihood, demands

® Page 15.

_ oS

something more of the applicant than a formal certificate

of completion of a course of legal study and the ability

acceptably to answer a series of questions on a Bar exam-

ination. It presumably demands what fundamentally is

character. And it is character which a State holds out

to the public when it authorizes an applicant to practice

law.

9. Judges and Bar Examiners, of course, should hesitate

to judge too strictly those seeking entrance to the profes-

sion. Certainly the impatience and far-ranging attitudes

of youthful years are not, in themselves, disqualifying.

That is part of the maturing process, especially for future

lawyers who must study, examine, select and develop

their philosophies of life and of their profession. Mr.

Justice Frankfurter expressed it well:

10 BAIRD v. STATE BAR OF ARIZONA

“The bar has not enjoyed prerogatives; it has been

entrusted with anxious responsibilities .... From

a profession charged with such responsibilities there

must be exacted those qualities of truth-speaking, of

a high sense of honor, of granite discretion, of the

strictest observance of fiduciary responsibility, that

have, throughout the centuries, been compendiously

described as ‘moral character.’

“History overwhelmingly establishes that many

youths like the petitioner were drawn by the mirage

of communism during the depression era, only to

have their eyes later opened to reality. Such ex-

periences no doubt may disclose a woolly mind or

naive notions regarding the problems of society.

But facts of history that we would be arbitrary in

rejecting bar the presumption, let alone an irrebut-

table presumption, that response to foolish, baseless

hopes regarding the betterment of society made

those who had entertained them but who later un-

doubtedly came to their senses and their sense of

TR etl AIT li CENA AW ROMA Ate Bi SA MED ta AA dE IMAALE S216 EBRD LETTING ABER A LAT BE GL

BAIRD v. STATE BAR OF ARIZONA 11

bd

responsibility ‘questionable characters.’” Schware

v. Board of Bar Examiners, 353 U.S. 232, 247, 251

(1957) (concurring opinion).

10. An attorney, we sometimes tend to forget, is an

officer of the court. Ez parte Garland, supra, 71 U. S.

(4 Wall.), at 378. Perhaps we read too much into that

phrase. But there is a distinct element of fact and of

history in it. We have seen, of late, an overabundance

of courtroom spectacle brought about by attorneys—

frequently those who, being unlicensed in the particular

State, are nevertheless permitted, by the court's indul-

gence, to appear for clients in a given case—who give

indications of ignoring their responsibility to the courts

and to the judicial process. Question 27 bears upon this

facet of an applicant’s character.

11. The Court acknowledges that Arizona has a legiti-

mate interest in determining whether the applicant has

the “qualities of character” requisite for the practice of

law. But the Court then goes on to preseribe when, in

its judgment, the applicant has given a sufficient amount

of information to the committee. I doubt if this Court

is the proper tribunal to judge the sufficiency of material

supplied for legal practice in Arizona. Of course there

is a constitutional limit, but that limit is marked by the

relevant, by the excesses of unreasonableness and of

harassment, and by the otherwise constitutionally for-

bidden. It should not be marked at an arbitrary point

where the applicant, for reasons of convenience or as-

sumed self-protection or contrariness, decides that enough

is enough.

12. Finally, the State has a measure of a right to pro-

tect itself. Its area of possible vulnerability is nowhere

greater than in its courts and in its judicial process.

Courtroom events disclosed in recent litigation vividly

demonstrate this. See JIlinois v. Allen, 397 U. S. 337

(1970) ; Mayberry v. Pennsylvania, —- U. 8S. — (1971).

XBT

~~

Say

Assurance that applicant Baird at least professes to re-

frain from forceful and violent overthrow of the Govern-

ment of which, upon admission, she will become a true

and working part, and under which, for better or for

worse, she has lived and, judging by her excellent educa-

tion, has prospered and enjoyed some benefits, is a subject

of legitimate inquiry.

As stated above, on this record I would affirm the judg-

ment of the Supreme Court of Arizona.

12 BAIRD v. STATE BAR OF ARIZONA

—_~_

SUPREME COURT OF THE UNITED STATES

Nos. 15 & 18.—Ocroser Term, 1970

Sara Baird, Petitioner, ; aes :

15 Ma On Writ of Certiorari to the

State Bar of Arizona. Supreme Court of Arizona.

In the Matter of the

18 Application of

Martin Robert Stolar.

On Writ of Certiorari to the

Supreme Court of Ohio.

[February 23, 1971]

Mr. Justice WHITE, dissenting.

I am quite unable to join the opinions of the Court

in these cases. It is my view that the Constitution does

not require a State to admit to practice a lawyer who

believes in violence and intends to implement that belief

in his practice of law and advice to clients. I also be-

lieve that the State may ask applicants preliminary

questions which will permit further investigation and

reasoned, articulated judgment as to whether the appli-

cant will or will not advise lawless conduct as a practicing

lawyer.

Arizona has no intention of barring applicants based

on belief alone. This my Brother BLackMuN makes

quite clear. Its inquiries were designed to ascertain

whether an applicant expects actively to support illegal

violence or espouses an activist role in implementing that

idea.

Ohio takes much the same approach, and in my view

both States are right. If as a preface to further ques-

tions, New York may ask whether an applicant is a know-

ing member of the Communist Party, although that fact

alone would not be grounds for exclusion, see Law Stu-

dents Civil Rights Research Council, Inc. v. Wadmond,

Bao.

Soe ots

2 BAIRD v. STATE BAR OF ARIZONA

post, Arizona and Ohio may ask about simple member-

ship for the same justifiable reason. And if investigation

reveals the applicant to be actively furthering the illegal

activities of any group or to be without comprehension

that advising lawless conduct is incompatible with pro-

fessional standards, the State should be able to deny

admission to the Bar.

As the majority hastens to assure us, a State may as-

sure itself of an applicant’s “good character” and educa-

tional qualifications. Accordingly, it would be entitled

to make an assessment of his “honesty” and refuse to

license him if firmly convinced by his responses or other

record evidence that he would not conform to the stand-

ards of integrity expected of the members of the Bar.

Neither should it be required to admit to practice a per-

son who believes in violent conduct to achieve social,

political, or other ends and who is currently and actively

supporting such activities or who expects to do so in the

course of advising clients in his professional role. I thus

see no constitutional basis for forbidding the asking of

perfectly relevant questions designed to ascertain whether

an applicant considers it the proper role of the lawyer, as

practitioner, to advise and advocate violence as a means

for settling disputes or achieving social or political ends.

I therefore dissent from the judgments in both of these

cases.