Appellants Brief — Law Students Civil Rights Research Council, Inc. v. Wadmond

Supreme Court brief1971

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jed an

vil Right

Ocroser TERM, 1969

paid A

Law STupeNnTS CiviL RIGHTS ‘kane Counc, Inc., et al.,

Plaintiffs-Appellants,

JOHN F. DAViS.

—Y,—

LoweLL Wapmonp, et al.,

Defendants-A ppellees.

—<—--

SrePHEN Martin WEXLER, ef al.,

Plaintiffs-Appellants,

—V,——

Supreme Court OF THE State OF NEw York, APPELLATE

Division, First Jupician DepartTMENt, et al.,

Defendants-A ppellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR APPELLANTS

pe H. Levine

New York Civil Liberties Union

156 Fifth Avenue

New York, New York 10010

JEREMIAH S. GuTMAN

Levy, GuTMAN AND GOLDBERG

363 Seventh Avenue

New York, New York 10001

Attorneys for Law Students Civil

Rights Research Council, Inc.,

et al.

Burt NEUBORNE

Metvin L. WuLrF

Sanrorp Jay Rosen

Of Counsel

FEB 26 }9.

ALLER RNA ITI THA

ate ed

Nee ET

INDEX

PAGE

pinions Below 1

urisdiction 9

onstitutional and Statutory Provisions Involved ........ 9

uestions Presented 9

tatement of the Case 3

ummary of Argument g

RGUMENT

Pot I

The statutes, rules, questionnaire and affidavits by

which admission to the bar is regulated broadly

invade an applicant’s privacy and his political be-

liefs and activities in violation of his rights under

the First, Ninth and Fourteenth Amendments ........ 11

Pot II

The bar admission screening process infringes

First Amendment freedoms by seeking informa-

tion relating to political activities, beliefs and asso-

ciations 15

A. The requirement that an applicant explain inno-

cent membership in organizations advocating

or teaching the violent overthrow of the gov-

ernment inhibits the right of free association

protected by the First Amendment ................... 19

Konigsberg and Anastaplo

B. The Loyalty oaths required by CPLR 9406 and

Question 27(b) are vague and overbroad and

compel a declaration of belief in derogation of

First Amendment rights

C. The Committee’s requirement of blanket diselo.

sure of an applicant’s record of arrests inhibits

many prospective attorneys from engaging in

controversial, though constitutionally protected,

political activity

D. The requirement of CPLR 9406 that an appli-

cant bear the burden of proving his loyalty in.

hibits the exercise of First Amendment rights

Pornt III

The unreasonably broad search of an applicant's

private life undertaken by the questionnaire and

affidavits serves no substantial interest of the state

and thus offends his right to privacy protected by

the First, Fourth, Ninth and Fourteenth Amend.

ments

Pornt IV

An injunction should issue against the vague and

overbroad statute pursuant to which the Character

Committee has exercised its unconstitutional av-

I ciictnienniciniiaitintcaniemaen

ConcLUSION

iii

PAGE

AppENDIx

A MOUGIIOIE scitrihiesstsectnsiecanitihintnsissitahdasincsteniapnistt la

Excerpts From Application for Admission to the

Bar, First Judicial Department 5a

TABLE OF CITATIONS

Cases :

Achtenberg v. State of Mississippi, 393 F.2d 468 (5th

20 cir. 1968) ....... 35

American Communication Association v. Douds, 339

US, 382 28

4) ® Anastaplo, In re, 366 U.S. 82 ..... 11, 15, 20, 23

Aptheker v. Secretary of State, 378 U.S. 500 ................ 22

Baggett v. Bullitt, 377 U.S. 360 ....... 20, 30

Bates v. Little Rock, 361 US. 516 (1960) 0. 14

Beilan v. Board of Education, 357 U.S. 399 ~..000.... 23

Boyd v. United States, 116 U.S. 746 46

Brandenburg v. Ohio, 395 U.S. 444 ...... 20, 29

Cole v. McClellan, Nos. 23424 and 23425 (D.C. Cir.)

RETIN: sxasescnscsinnssninbineseissintsushinnpsoatenshinithiissiaiaensistnonsticheaiun, 16

Davis v. Francois, 395 F.2d 730 (5th Cir. 1968) ............ 35

Dombrowski v. Pfister, 380 U.S. 479 cooccccccccceseeceseeeeeeee 43

4 Hifbrandt v. Russell, 384 U.S. U1 cece cceeceeeeeeeeees 20

() ® Freedman v. Maryland, 380 U.S. 501 .. a 41

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

i alah cal an tice ak eceic 23

Gibson v. Florida Legislative Investigation Committee,

2 U.S. 539 26

Gregory v. City of Chicago, —— U.S, — 36

Griswold v. Connecticut, 381 U.S. 479

Hallinan v. Committee of Bar Examiners, 421 P.2q 76

I ID icessssesnctnnssecinssetstinssananennnvesstenniniiensinnes Nias 33

Haskett v. Washington, 294 F. Supp. 912 (D. D.C,

1968)

Heckler v. Shepard, 243 F. Supp. 841 (E.D. Idaho

PUTED, sciniddaresesisincinrattgiciignnititehintnanititjeigteiinhinisinninig iis tam 4]

Hosack v. Smiley, 276 F. Supp. 876, aff’d per curiam,

390 U.S. 744 ..... . &

Katz v. United States, 389 U.S. 347 occ cecccccccecceeeee. 46

Keyishian v. Board of Regents, 385 U.S. 589 (1967) 12, 0,

Kirkland v. Wallace, as Governor of Alabama, 403

F.2d 413 (5th Cir. 1968) ‘a 95

Knight v. Board of Regents, 269 F. Seep. 339 (S.D.

N.Y. 1967), aff’d per curiam, 390 U.S. 36 .................... 8

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

PRIN } <cmrisssniensainiteieveiniceliniimitatatampetipiiebiniccics ate 11,13

Konigsberg v. State Bar of California, 366 U.S. 36 ....11, 2,

23, 24, 31

Lamont v. Postmaster General, 381 U.S. 301

Lerner v. Casey, 357 U.S. 468

Matter of Spencer, No. 513, prob. juris. noted, 38 U.S.

Law Week 3287 (Feb. 2, 1970) 16

Morrow v. District of Columbia, 417 F.2d 728 (D.C.

Cir. 1969) : 37, 38, 39

PAGE

NAACP. v. Button, 371 U.S. 415 (1963) ........ 12, 15, 22

Noto v. United States, 367 U.S. 290 ... ; 99

Olmstead v. United States, 277 U.S. 438 ..........ccceeecsessesees 47

Poe v. Ullmann, 367 U.S. 497 ........ > o .. 4

Richards v. Thurston, 304 F. Supp. 449 (D. Mass. 1969) 47

Seales v. United States, 367 U.S. 203 29

Schneider v. Smith, 390 U.S. 17 (1968) ........ 12, 24, 25, 26

Schware v. Board of Bar Examiners, 353 U.S. 232

(1957) 11, 14, 20, 34

Shelton v. Tucker, 364 U.S. 479 22, 23, 25

Shuttlesworth v. City of Birmingham, 394 U.S. 147 .... =)

Sobol v. Perez, 289 F. Supp. 392 (D. La. 1968) ............ 15

Sobol v. Perez, 289 F. Supp. 392 (E.D. La. 1968) ........ 35

Speiser v. Randall, 357 U.S. 513 (1958) ...... 10, 29, 49, 41, 42

Stanley v. Georgia, 394 U.S. 557 0... esssssssscssecceceseeeneee 46

Sweezy v. New Hampshire, 354 U.S. 234 21

Talley v. California, 362 U.S. 60 21

Tehan v. Shott, 382 U.S. 406 ......,.........cc0000-. 5s iiiaadioalaad 46

Thomas vy. Collins, 323 U.S. 516 .. isha inltildi 29

United States v. Aluminum Company of America, 148

NY EEE Gs PIN odisnids cascctdinsenisndmnsdcaniaccundinsanieneadohins 48

United States v. Kalish, 271 F. Supp. 968 (D. P.R.

NE * uiielcinsniahibaasdandianademenutd pein deecaansbtinbaatteaibih 37, 39

United States v. McLeod, 385 F.2d 734 (5th Cir.

TEI: SclidsatecdtsdasabainbAdepegieinietonecaiciAninanietanlasihaiedalaiihcetnee 35, 37, 39

United States v. O’Brien, 391 U.S. 367 ooo. ceeeeeeeee 28

United States v. Robel, 389 U.S. 258 wo. eeeeee 22

PAGE

United States v. Rumely, 345 U.S. 41 .

United States v. Smith, 414 F.2d 630 (5th Cir. 1969) .

Watkins v. United States, 354 U.S. 178 . 21, 22, 4

West Virginia State Board of Education v. Barnette,

319 U.S. 624 29, 31

Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968) 3

Wheeler v. Goodman, 306 F. Supp. 58 (D. N. Car. 1969)

37,

Willner v. Committee on Character and Fitness, 373 ,

U.S. 96 - ll

Yates v. United States, 354 U.S. 298 Do)

Constitutional Provisions:

United States Constitution

Article XTTI, $1 30

First Amendment 2, 11, 15, 19, 21, 22

23, 26, 27, 28, 31, 33,

36, 37, 39, 40, 41, 4

Fourth Amendment 2,48

Sixth Amendment 9

Ninth Amendment ................----- 2, 11, 43, 4

Fourteenth Amendment ................-- 2, 11,8

Rules:

New York Court of Appeals

Rule VII-2 ......

Rule VIII

Rule VIII-1

COPY BOUND CL‘

—,

vii

PAGE

Statutes:

98 U.S.C. §1253 2

42 U.S.C. §1983 40

New York City Administrative Code

Section AA 41-2.0 36

New York J udiciary Law

590 -- 3, 5, 12

§90(1) (a) 2

New York Penal Law

§210.00 5

Other Authorities :

Brown and Fassett, “Loyalty Tests for Admission to

the Bar,” 20 U. Chi. L. Rev. 480 (1953) 18

Civil Service Commission, Federal Personnel Manual,

letter #731-2, August 15, 1966 37

Day of Protest: Night of Violence, American Civil

Liberties Union (1968) 36

Dissent and Disorder: A Report to the Citizens of

Chicago on the April 27 Peace Parade (1968) ......- 36

Emerson, Haber and Dorsen, Political and Civil Rights

in the United States 55 (1967) .....-..----------------------- 42

Emerson, “Toward a General Theory of the First

Amendment,” 72 Yale LJ. 877 (1963) 17, 32

Gellhorn, W., Individual Freedom and Governmental

Restraint, 150 (1956) -.. ; 14

45 Ill. B.J. 818 (1957) 18

Keniston, Young Radicals (1968) 27

_OSE IN CENTER

Viii

New York Post:

Jan. 14, 1970 (p. 18) -........... CARROT SEAS %

New York Times:

A er O e %

Sa - BG, WEED Ci. UD nerenecsemmeneennnion 16

Nov. 6, 1969 (p. 54) .......... nseiagtiiiaapiiiubeamane: 16

ST Tete TIED MIR. TED scecisccrmnseesstenstnnsamesievsnnnnsinsiieiniboniiinn 16

RT, TR I A. BD cecenreserensersnsemnsnenrensinmnionioa 16

ON Vi

a a re Cs TD cicctctcerrserneenscinetneniernonniniinntinntiiai 16

te | Oe | Speen en EER 16

i I IS TIED "is scishiansssesitedneninaisonetinntebabasiienibaaiacs X

By Be Hs GOED whsteicencetnimnnrcccnntentonesteeinien 1"

i Be ee CR TED cnpecceetneeinerennestnensennneenesiivinstionniniiii 7

Note, “Loyalty Oaths,” 77 Yale L.J. 739 (1968) -........ 20, 28

Pollitt, “Timid Lawyers and Neglected Clients,” Har-

per’s (August, 1964) ........................ 15

“Report of the Committee to Investigate the Effect

of Police Arrest Records on Employment Opportuni-

ties in the District of Columbia” (1967) ............ 33, 37, 39

Rossiter, “The Pattern of Liberty” in Konvitz and Ros-

siter (eds.), Aspects of Liberty, 15 (1958) ............... 47

Skolnick, The Politics of Protest Ch. 3 (1969) ........ 27,31

The Maintenance and Use of Arrest Records: Report

and Proposals by the National Capital Area Civil

Libertion Uniom (1967) ..................-...-0.-c.....ccccressmmeene 37

Village Voice:

Pa, BO, ROD Ca. Bp anna nncrcnnnenn sete ens 16, 36

Westin, Privacy and Freedom, 141 (1967) ...........- 13, 47

Wolfe, Three Who Made A Revolution 85 (1955) ...... 18

COPY BOUND CL

Supreme Court of the United States

OcrosrR TERM, 1969

No. 696

————

Law STUDENTS Civiz Rients Researcu Councit, Inc., et al.,

Plaintiffs-Appellants,

—V.—

LOWELL Wapmonp, e¢ al.,

Defendants-Appellees.

SrepHeN Martin WEXLER, et al.,

Plaintiffs-Appellants,

_V—

Supreme CouRT OF THE Srate or New York, APPELLATE

Division, First JupiciaL DeparTMENT, et al.,

Defendants-A ppeuees.

ON APPEAL FROM THE UN ITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

—_<—

BRIEF FOR APPELLANTS

Opinions Below

The Opinion of District Judge Motley convening the

three-judge statutory court is reported at 291 F. Supp. 772

and is set out in the separate Appendix (A. 106). The

‘Numbers preceded by “A.” refer to pages in the separate

Appendix.

LOSE IN CENTER

majority opinion of the three-judge court and the partially

concurring and partially dissenting opinion of Judge Mot.

ley are reported at 299 F. Supp. 117, 133. They are set ont

at pages A. 143 and A. 169 of the Appendix, respectively,

Jurisdiction

The judgment of the court below was entered on June

16, 1969 and appears in the separate Appendix (A. 225),

The Jurisdictional Statement was filed on October 6, 1969,

Jurisdiction of this appeal is conferred by 28 U.S.C. $1253,

Constitutional and Statutory Provisions Involved

The constitutional provisions involved are the First,

Fourth, Sixth, Ninth and Fourteenth Amendments to the

United States Constitution. The statutory provisions in-

volved are New York Judiciary Law $90(1)(a), New York

Civil Practice Law and Rules, Art. 94, Rules 9401, 9404 and

9406(1) and Rule VIII of the Rules of the New York Court

of Appeals for the Admission of Attorneys and Counselors.

at-Law, which are set out at pages la-4a* in the Appendix

to this Brief.

Questions Presented

Does the statutory and regulatory scheme by which the

admission of applicants to the bar is regulated violate the

rights of applicants and potential applicants, under the

Constitution, to freedom and privacy of speech, belief and

2 Numbers followed by “a” refer to the pages in the Appendix

to this Brief.

association and f reedom from arbitrary government in-

trusion into their personal affairs, and the rights of the

public, particularly racial minorities and those who are

politically unpopular, to the effective assistance of counsel,

in that

(1) heeause of its vague and overbroad standards it in-

quires, through questionnaires and interviews, into

the political beliefs, associations and activities of all

applicants ;

(2) it compels the holding of a particular belief, namely

loyalty to and belief in the Constitution and form of

government of the United States, as a condition of

admission to the bar ;

(3) it places on the applicant the burden of proving his

belief in and loyalty to the form of government of

the United States ;

(4) because of its vague and overbroad standards it in-

quires, through questionnaires and interviews, in-

discriminately, arbitrarily and unreasonably into the

personal lives and activities of all applicants.

Statement of the Case

Admission to practice law in the State of New York (and

dependent admission to the United States District Courts

in New York) is controlled by a complicated statutory-rule-

questionnaire-affidavit structure. Judiciary Law §90 di-

reets each of the four Appellate Divisions of the state’s

supreme court to “be satisfied” that the applicant “pos-

sesses the character and general fitness requisite for an

attorney.” The Civil Pnetice Law and Rules (statutes

enacted by the Legislatur:) direct each division to appoint

a committee on characte: and fitness (Rule 9401) which

must certify the applica following investigation by its

own “form of statement « questionnaire” calling for “jj

the information and data required by the committee and the

appellate division justice.” Each of the four committees

and groups of justices is tee to require whatever informa.

tion it wills over the mininum requirement as to all places

and dates of residence (tule 9404). The committees are

admonished, however, by tule 9406 that no applicant shall

receive his certificate, ani the appellate divisions are ad.

vised that no person shal be admitted, “unless he shall

furnish satisfactory proojto the effect that he believes in

the form of the governmnt of the United States and is

loyal to such government’ and meets certain standards of

citizenship and residence. (Emphasis supplied.) The

state’s highest court has nled that “[e]very applicant . .,

must produce and file .. evidence that he possesses the

good moral character anc general fitness . . . provided in

Section 90 of the Judiciar law. ...” (Rule VIII-1, Rules

of the New York Court ¢ Appeals for Admission of At-

torneys and Counselors-a-Law.) (Emphasis supplied.)

Each of the four appellte divisions has made rules and

adopted, and from time tctime amended, questionnaires to

implement the procedures nd structure under attack. Some

of the amendments occured just prior to and during the

course of this litigation. The questions still at issue are

set out at 5a-7a. In addion to the questionnaires, each

department has issued istructions on the areas of per-

sonal and home life to be covered by the affidavits re-

quired by Rule VIII. The final stage of the process is a

personal interview conducted by the committee and based

upon lines of inquiry developed by answers to the ques-

tionnaire, supporting afidavits and the “further examina-

tion and inquiry” which the committee is authorized to

make without limitation Rule 9401 and Court of Appeals

Rule VIII-2).

“Character and general fitness” in Judiciary Law $90 are

undefined; the range and scope for the “data and informa-

tion required” by Rule 9404 are not limited; the quantum

of “satisfactory proof” that “he believes” and “is loyal”

which the applicant “shall furnish” under Rule 9406 is un-

specified ; the eoncept of “good moral character” on which

the prospective attorney “must produce and file evidence”

under Rule VIII-1 is left undefined by the Court of Appeals

and is not mentioned by the Legislature.

These plaintiffs, law students and an organization of law

students, commenced this action seeking injunctive and

declaratory relief asserting rights on behalf of classes of

law students, law students’ organizations and persons seek-

ing legal representation, alleging violations of rights of

free expression, privacy, association, and belief and com-

plaining of the threat posed by defendants’ procedures to

a free, vigorous, independent and sympathetic bar for per-

sons seeking such representation.

Under penalties of perjury (N. Y. Penal Law $210.00)

each applicant is required by unequivocal directions to

make disclosure “fully and accurately” of any fact or in-

formation called for.

Consequently, appellants argued that, since the Character

Committee, under the broad language of the enabling stat.

utes, could reinstate deleted questions or formulate eve,

more intrusive ones, the statutes themselves should be de.

clared invalid. But the majority below confined its disens.

sion only to the four following questions:

“26. Have you ever organized or helped to organize

or become a member of or participated in any way

whatsoever in the activities of any organization s

group of persons which teaches (or taught) or advo.

cates (or advocated) that the Government of the United

States or any State or any political subdivision thereof

should be overthrown by force, violence or any unlay.

ful means? If your answer is in the affirmative, stat:

the facts below.

27(a). Do you believe in the principles underlying

the form of government of the United States of Amer.

ica?

(b) Can you conscientiously, and do you, affirm that

you are without any mental reservation, loyal to and

ready to support the Constitution of the United States?

31. Is there any incident in your life not called for

by the foregoing questions which has any favorable or

detrimental bearing on your character or fitness? If

the answer is ‘Yes,’ state the facts.

32(a). Have you read the Canons of Ethies adopted

by the American and New York State Bar Associa-

tions?

(b) Will you conscientiously endeavor to conform

your professional conduct to them?”

In its opinion of February 17, 1969, the court below re-

manded Questions 26, 27(a) and 31 to the Character Com-

mittee for revision in light of its opinion; upheld Question

97(b); and upheld Question 32(a) and (b) with the under-

standing that they would permit “dissent on a reasoned

basis.” A. 167.

After the opinion of the three-judge court, appellees

offered to amend item 26 as follows:

“96(a). Have you ever organized or helped to or-

ganize or become a member of any organization or

group of persons which, during the period of your

membership or association, you knew was advocating

or teaching that the government of the United States

vr any State or any political subdivision thereof should

be overthrown or overturned by force, violence or any

unlawfu! means? If your answer is in the affirmative,

state the facts below.

(b) If your answer te (a) is in the affirmative, did

you, during the period of such membership or associa-

tion, have the specific intent to further the aims of such

organization or group of persons to overthrow or over-

turn the government of the United States or any State

of any political subdivision thereof by force, violence

or any unlawful means?”

They offered to revise Question 27(a) to read:

Do you believe in the constitutional form of govern-

ment of the United States of America?

The court below in its final judgment accepted the changes

in Question 26 but changed Question 27(a) to read as fol.

lows:

“27(a). Is there any reason why you cannot take

and subscribe to an oath or affirmation that you wil

support the constitutions of the United States and of

the State of New York? If there is, please explain,”

The Committee omitted Question 31.

Plaintiffs appeal from the judgment insofar as it fails

to grant the full relief originally sought by them.

Summary of Argument”

This case, unlike other bar admission cases which have

been before this Court, presents a view of the entire pro.

cedure by which applicants to the bar are screened. That

procedure is challenged not merely because certain ques.

tions improperly delve into political beliefs and associa-

tions generally recognized to be beyond the constitutional

reach of the state, but because in its entirety it demands

of every applicant a soul-searching inquiry into the far-

thest reaches of his personal life, past and present. We

submit for this Court’s review not only the practices as

they now exist, but, to illustrate the scope of the inquiry

which the Character Committee believes statutorily au-

thorized, as it existed at the start of this litigation.

** A separate brief is being filed simultaneously on behalf of

appellants in the companion case of Wezler v. Supreme Court of

the State of New York. To the extent that arguments raised in

that brief are not made in this brief, they are incorporated by

reference herein.

The impact of the inquiry under review can be appre-

ciated only in the context of increasing hostility by the

government and its spokesmen towards political dissidents

and their organizations. In this developing climate of hos-

tility towards those who dissent, as the number of prose-

cutions of political activists increases, the dangers of the

Character Committee’s screening procedures become singu-

larly apparent.

It can be safely assumed that the law school graduates

who will be appearing before the Character Committee in

the coming years will, in increasing numbers, contrast

with its members in life style and political outlook. Though

such matters have no relation to their fitness to practice

law, they will be called upon to explain their personal

activities, their politics and their morals to men they have

every reason to expect to be unsympathetic. Knowing that

they face inquiries into such personal matters, they may

forego controversial, but constitutionally protected, activi-

ties or they may forego applying to the bar. Or they may

be rejected by the committee for failing to meet its politi-

cal and moral standards. In none of these cases are the

interests of either the public or the bar served.

The Committee accomplishes its search of an applicant’s

political and personal life by means of an elaborate ques-

tionnaire, personal interviews, “home life” affidavits, and a

statute which commands that he prove his loyalty to and

belief in the government. The questionnaire demands an

explanation of membership in any “subversive” organiza-

tion, regardless of the character of the organization or the

nature of the membership. Its inquiry into such a broad

area of constitutionally protected association is in dero-

gation of principles clearly established by this Court.

Another question and CPLR 9406 compel professions

of loyalty and belief, in contravention of this Court’s Te.

peatedly stated principle that a person’s beliefs are of

absolutely no concern to the government.

Another question solicits details about an applicant’s

arrests, without limitation as to the crime charged or its

disposition. Given the large number of arrests arising from

constitutionally protected activities, this inquiry is another

form of probing into political activity. Since so many of

these political arrests lead to charges which are dismissed

or convictions which are reversed, the state has no legiti-

mate interest in such far-reaching disclosure.

CPLR 9406 places upon the applicant the burden of

proving his loyalty. In addition to the unconstitutionality

of compelling loyalty, to place this burden on the applicant

clearly contravenes this Court’s holding in Speiser y,

Randall, 357 U.S. 513.

Other questions as well as the home life affidavits inquire

indiscriminately into an applicant’s personal life and past

activities without any rational connection to legitimate in-

terests of the Character Committee. These inquiries offend

the emerging right of privacy enunciated in a variety of

contexts by this Court. Those cases begin to give content

to the notion that an individual has a right to be free from

unreasonable intrusions by his government.

The statutory scheme pursuant to which the Committee

has developed its inquiries remains unaffected by the de-

cision below. The defendants have not conceded that they

lack authority to ask any questions, except perhaps those

specifically prohibited. To insure against other equally

onerous inquiries being propounded in other times, this

Court should require the entry of an injunction based on

its ruling on the substantive issues presented.

ARGUMENT

POINT I

The statutes, rules, questionnaire and affidavits by

which admission to the bar is regulated broadly invade

an applicant’s privacy and his political beliefs and activi-

ties in violation of his rights under the First, Ninth

and Fourteenth Amendments.

This Court has had before it at various times particular

aspects of the procedure whereby applicants for admission

to the bar are screened. Schware v. Board of Bar Ex-

aniners, 353 U.S. 282; Konigsberg v. State Bar of Cali-

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

966 U.S. 36; In re Anastaplo, 366 U.S. 82; Willner v. Com-

mittee on Character and Fitness, 373 U.S. 96. In this case,

for the first time, the entire procedure is attacked as

broadly invading First Amendment rights and rights of

privacy. Although some of the issues raised here have

been treated by the Court before,’ the complex screening

process whereby statutes, rules and questions interact to

delve deeply into an applicant’s private and political as-

sociations and beliefs, both past and present, has never be-

fore been considered by the Court in its entirety. Though

we will proceed to analyze particular provisions of this

screening process, an overall view suggests an obvious

analogy to that which was said about a teacher-screening

program :

“The very intricacy of the plan and the uncertainty

of its proscriptions make it a highly efficient im ter-

rorem mechanism, It would be a bold teacher who

*See Point ILA, infra.

would not stay as far as possible from utterances or

acts which might jeopardize his living by enmeshing

him in this intricate machinery.” Keyishian y. Boarg

of Regents, 385 U.S. 589, 601.

This case presents a plan no less intricate, with proscrip.

tions no more certain. That some of its most onerous fea.

tures were discarded in response to both the filing of these

suits and, subsequently, to the opinion of the court below,

does not detract from the issue before this Court, namely,

that the standard pursuant to which the screening of bar

applicants is authorized, “character and fitness,” has re.

mained unaffected by this litigation, with no concession

by the defendants that the breadth of their original inquiry

was not authorized by the statute. See Point IV, infra.

We do not challenge the State's right carefully to serv.

tinize admissions tv the bar in order to insure for the

public the integrity and competence of its legal profes.

sion. But “a State may not, under the guise of prohibiting

professional misconduct, ignore constitutional rights.”

N.A.A.C.P. v. Button, 371 U.S. 415, 439 (1963). Simply

stated, it is required of the State that

“an Act touching on First Amendment rights must be

narrowly drawn so that the precise evil is exposed ....

An unlimited and indiscriminate search of the en-

ployee’s past which interferes with his associational

freedom is unconstitutional.” Schneider vy. Smith, 390

U.S. 17, 24 (1968).

No such precision appears, however, in the enabling stat-

ute under which defendants have promulgated the ques-

tionnaire which applicants to the bar must complete. Both

Section 90 of the Judiciary Law and Rule 9404 of the

New York Civil Practice Law and Rules command an in-

vestigation into the “character and fitness” of the applicant.

As to an almost identical standard, this Court has said that

it is

« |. unusually ambiguous. It can be defined in an

almost unlimited number of ways for any definition

will necessarily reflect the attitudes, experiences, and

prejudices of the definer. Such a vague qualification,

which is easily adapted to fit personal views and predi-

lections, can be a dangerous instrument for arbitrary

and discriminatory denial of the right to practice law.”

Fonigsberg v. State Bar of California, 353 U.S. 252,

263 (1957).

As more particularly shown in the following Section,

and observed by Judge Motley in her separate opinion

below, the defendants, pursuant to their vague statutory

mandate, have devised a plan which graphically illustrates

the fears expressed in Konigsberg.

The Character Committee has construed its statutory

authority to support an almost unlimited invasion of

personal and political privacy, relevant to the practice of

law only on the theory that the more one knows about an

applicant, the better one can predict the kind of lawyer

he will be. Aside from the questionable assumption under-

lying that theory—that such information in the hands of

men who are professional lawyers, but amateur psycholo-

gists and sociologists, has any predictive value‘—:* totally

disregards the fundamental right of the citizen to be free

from needless government intrusion. That the state may

‘It is by no means certain that the social scientists are able to

predict a great deal from even more elaborate screening pro-

grams. See, ¢.g., Westin, Privacy and Freedom, 141-43 (1967).

have some greater interest in him because he is an ap-

plicant to the bar does not answer the question. If, in the

exercise of its right to regulate admission to the bar, the

state

“... threatens significantly to impinge upon constity.

tionally protected freedom, it becomes the duty of this

Court to determine whether the action bears a reason.

able relationship to the achievement of the govem.

mental purpose asserted as its justification.” Bates y.

Little Rock, 361 U.S. 516, 525 (1960).

The investigating scheme implemented by defendants

bears no “reasonable relationship” to any legitimate pur-

pose of the state because, as discussed in the subsequent

sections of this brief, it inquires indiscriminately into the

applicant’s constitutionally protected activities and beliefs

and because it solicits information far in excess of that

which is necessary for the Character Committee to properly

perform its task. That task is defined by the term “char.

acter and fitness,” a standard which neither opinion below

finds deficient on its face. A. 151, 192-93. The majority

found it restricted to “suitability for the practice of law,”

while Judge Motley tried to refine it further by drawing

on definitions offered by Justice Frankfurter and Profes-

sor Walter Gellhorn.’ A. 191-192. But if that standard

is susceptible of limitation, the practice of wholesale in-

vasion of the applicant’s political and personal activities

and beliefs compels at least the conclusion reached by

Judge Motley, that “its interpretation, implementation and

application . . . are unconstitutional” A. 196-7, and sup-

* Schware v. Board of Bar Examiners, 353 U.S. 232, 247 (Frank-

furter, J., concurring); W. Gellhorn, Individual Freedom and

Governmental Restraint, 150 (1956).

ports plaintiffs’ argument that the words are also so am-

biguous as to invite the arbitrary and discriminatory use

to which they have been put and are therefore unconstitu-

tionally vague.

POINT II

The bar admission screening process infringes First

Amendment freedoms by seeking information relating

to political activities, beliefs and associations.

It is well to bear in mind here that appellants assert

more than a personal right to privacy of beliefs and asso-

ciations. They speak, as have others before them,* of the

important need for lawyers who are committed to the law

as a tool for pursuing social justice and who are committed

to the representation of unpopular causes and clients. As

against the State’s interest in insuring the honesty, integ-

rity and competence of members of the bar, they suggest,

therefore, consideration not only of appellants’ personal

rights, analyzed below, but of the public’s considerable in-

terest in a bar which is truly free from political surveillance

by the government.

In this regard, Judge Motley found it appropriate to

note that the organizational plaintiffs in this and the com-

panion case are comprised of law students dedicated to

the protection of civil rights and civil liberties. The ob-

jectives of the Law Students Civil Rights Research Coun-

cil, Inc. are “to eliminate prejudice and discrimination”

and to assist members of the bar representing the “indi-

gent, poor and distressed ...” A. 184. The organiza-

*See, e.g., N.A.A.C.P. v, Button, 371 U.S. 415; In re Anastaplo,

366 U.S. 82, 115 (Biack, J., dissenting) ; Sobo! v. Perez, 289 F.

Supp. 392 (D. La. 1968) ; Pollitt, “Timid Lawyers and Neglected

Clients,” Harper’s (August, 1964).

tions, Judge Motley pointed out, alleged that they would

succeed in their goals “only if law students feel free to

engage in such activities uninhibited by the fear of sub.

sequent delay or denial of admission to practice because

of affiliation with these organizations.” A. 186.

That fears of retaliation for association with contro.

versial clients are far from groundless is evident from a

number of recent incidents in which lawyers have been

disciplined or threatened with discipline as a result of

their participation in controversial trials.’ When in addi.

tion, the Justice Department and the Federal Bureau of

Investigation publicly criticize those who participate in

peace marches, announce investigations of organizations

engaged in dissent and assert the right to engage in elec.

tronic surveillance of those organizations without judicial

authorization,* then we may anticipate that many law stu.

dents will forego legitimate affiliation with such organiza-

tions for fear of having to respond to the political inquiries

of the Character Committee.®

"New York Times, Nov. 6, 1969 (p. 54), Feb. 4, 1970 (p. 19}

and Feb. 16, 1970 (p. 1). In addition, the lawyer who recently

defended nine persons in Washington D. C. accused of burning

draft cards was sentenced to 30 days in jail for contempt at the

close of the trial. Willage Voice, Feb. 19, 1970 (p. 9). See also,

Matter of Spencer, No. 513, prob. juris. noted, 38 U.S. Law Week

3287 (Feb. 2, 1970).

* New York Times, Nov. 17, 1969 (p. 1), Nov. 19, 1969 (p. 1),

June 14, 1969 (p. 1).

* An example of the kind of hostility to mere membership in a

disapproved organization which an applicant might anticipate is

found in United States v. Smith, 414 F.2d 630, 636 (5th Cir. 1969)

upholding, as a condition of probation, an order that a defendant

“forego any association whatever with the Students for a Demo-

eratic Society.” See also, Cole v. Mc ‘lellan, Nos. 23424 and 23495

(D.C. Cir.) (pending), contesting subpoenas issued by the Senate

Permanent Subcommittee on Investigations against at least twelve

universities seeking membership lists of campus political organiza-

tions.

These are, we submit, times when the country can ill

afford to have lawyers retreat from their time-honored

role of defending those who are the victims of public scorn

and contempt."° The procedures at issue here threaten

just such a retreat, both through the exclusion of those

deemed to be “subversive” or “disloyal” and through the

self-restraint exercised by those who must account for

their political activities to the Committee. Moreover, the

mere existence of such a political screening program in-

evitably tends to encourage greater encroachments on civil

liberties. They result, as Professor Emerson has observed,

in “corruption of the entire political atmosphere.” Emer-

son, “Toward a General Theory of the First Amendment,”

72 Yale L.J., 877, 892 (1963).

Against the broad public impact on the right to dissent

which flows from this screening program, the state asserts

the untenable proposition that protection of the public

demands the investigation of “subversive” and “disloyal”

applicants. But in support of that proposition history

offers not even the flimsiest of evidence. If prevention of

** Mayor John Lindsay of New York City, on the recent occasion

of ceremonies commemorating the 100th anniversary of the Associa-

tion of the Bar of the City of New York, issued this call to the legal

profession :

“The frenzy, the bitterness, the tumult of the last few years

have led many people—ineluding many in positions of power

—to expect peace and order to come by whittling away at the

Bill of Rights of our Constitution. Today, when the turmoil

has made repression a politically popular step, it is our ubliga-

tion as lawyers to stand against it—in whatever form it takes.”

New York Post, Feb. 20, 1970 (p. 50).

Tom Wicker commented along the same lines some days earlier :

“The legal establishment in America, which ought best to under-

stand this menace, has a special responsibility for exposing

the lasting consequences of momentary political hysteria.” New

York Times, Feb. 1, 1970 (Section 4, p. 12E).

politically motivated misuse of the legal process is the

interest to be protected, one would expect to find in the

reports of disciplinary proceedings substantial evidence

that “politically suspect” lawyers had been punished for

misconduct. No such evidence has been brought forward,

Nor is there evidence that such lawyers have been effec.

tively screened out." What the evidence does point to is

that the screening programs enormously exaggerate the

dangers which they are designed to meet, they bear no re.

lationship to any reasonable interest of the state, and, in

the process of probing the innermost reaches of the mind,

they affront human dignity and curtail individual freedom.

When, as Judge Motley points out, “adequate remedies

in the form of criminal penalties and disbarment already

exist to punish and deter irresponsible conduct,” A, 204,

defendants’ political screening program is constitutionally

intolerable.

The constitutional infirmity of this program is demon.

strated by particular aspects of it now to be discussed,

A study of rejections by bar committees indicates that only %

of one percent were denied admission on any character grounds.

Brown and Fassett, “Loyalty Tests for Admission to the Bar,”

20 U. Chi. L. Rev., 480, 497 (1953) ; 45 Ill. B.J. 818 (1957).

It is perhaps only a historical curiosity, but nevertheless sug-

gestive of the predictive value of inquiries intc beliefs and associa-

tions, that the Czar’s analogue to the Character Committee gave

Lenin a “Certificate of Loyalty and Good Character” and admitted

him to the bar. Wolfe, Three Who Made A Revolution 85 (1955).

_ @o am Xa oo -w oOo oOo oOo

—_ aS —— te A ae wae

A. The requirement that an applicant explain innocent mem-

bership in organizations advocating or teaching the violent

overthrow of the government inhibits the right of free

association protected by the First Amendment.

Question 26(a) of the Questionnaire, as modified in re-

sponse to the order of the court below, asks:

“26(a). Have you ever organized or helped to organize

or become a member of any organization or groups of

persons which, during the period of your membership

or association, you knew was advocating or teaching

that the government of the United States or any State

or any political subdivision thereof should be over-

thrown or overturned by force, violence or any unlaw-

ful means? If your answer is in the affirmative, state

the facts below.”

Prior to modification the inquiry was not limited to organi-

zations about whose purpose the applicant had knowledge.

Finding this question too broad, the court held:

“The prospect of having to respond to a inquiry like

Question 26 might have a deterring effect on exercise

of the constitutionally protected right of associa-

Gen ....” A. 1.

While approving the court’s limitation on the scope of

the inquiry, appellants believe that Question 26(a) still

deters constitutionally protected association by inquiring

into membership which, even if knowing, is entirely lawful.

The information sought by that inquiry has little relation-

ship to the concededly legitimate interest of the state in

securing the character and fitness of the bar.

Our position derives from principles established by

several cases in the loyalty-security area. We begin with

the holding in Schware y. Board of Bar Examiners, 353

U.S. 232 (1957) that mere membership in a “subversive”

organization (there the Communist Party) did not permit

an inference of bad moral character so as to justify exelp.

sion from the bar. This principle was extended, at least for

the teaching profession, by a series of loyalty oath cases

culminating in Keyishian y. Board of Regents, 385 U.S, 59

(1967),** which held that knowing membership in a guyb.

versive organization, without intent to further its unlawful

aims, was too broad a standard on which to condition em.

ployment. Unless different standards are to be applied to

admission to the bar and to the teaching profession—and

nothing in the opinion below or in the decisions of this

Court suggest such a distinction"*—then it is apparent that,

at least as regards membership in “subversive” organiza.

tions, an applicant for the bar could not be excluded except

upon a showing that his membership was with the intent

of furthering the organization’s unlawful aims. And that

intent may not be defined in terms of “mere advocacy” but

rather in terms of an “incitement to imminent lawless ae.

tion.” Brandenburg v. Ohio, 395 U.S. 444, 449%

Question 26(a), however, solicits information not only

about membership with unlawful intent but innocent mem-

* See, e.9., Baggett v. Bullitt, 377 U.S. 360; Elfbrandt v. Russell,

384 U.S. 11. See generally, Note, “Loyalty Oaths,” 77 Yale Li.

739 (1968).

*8 See, e.g., Konigsberg v. State Bar of California, 366 U.S. 36:

In re Anastaplo, 366 U.S. 82.

** Although we have focused on part (a) of Question 26 because

it is especially illustrative of the overbreadth of the committee's

political inquiry, part (b) seeks information unrelated to unlawful

action and is also unconstitutional under the same reasoning.

bership as well. It is true that it only asks for the in-

formation and does not suggest that such membership

alone will disqualify an applicant. Nevertheless, in the

context of the applicant’s burden of proving his loyalty, see

Point IID, infra, the disclosure of such information car-

ries a reasonable apprehension that it may obstruct his ad-

mission. This Court has concluded in two legislative investi-

gation cases that the mere inquiry into constitutionally pro-

tected association—with no specific penalty attaching to the

information it disclosed—violated First Amendment rights.

In Watkins v. United States, 354 U.S. 178, 200, Chief Jus-

tice Warren warned Congress and its investigating com-

mittees that there is no “general power to expose where

the predominant result can only be an invasion of the

private rights of individuals.”

“Abuses of the investigative process may imperceptibly

lead to abridgement of protected freedoms. The mere

summoning of a witness and compelling him to testify,

against his will, about his beliefs, expressions or as-

sociations is a measure of governmental interference.

And when those forced revelations concern matters

that are unorthodex, unpopular, or even hateful to the

general public, the reaction in the life of the witness

may be disastrous.” Id. at 197.

See also, United States v. Rumely, 345 U.S. 41. Reaching

the same conclusion in Sweezy v. New Hampshire, 354 U.S.

234, Justice Frankfurter, in a concurring opinion, said that

“the inviolability of privacy belonging to a citizen’s

political loyalties has so overwhelming an importance

to the well-being of our kind of society that it cannot

be constitutionally encroached upon on the basis of so

meagre a countervailing intent of the State... .” Jd.

at 265.

See also, Talley v. California, 362 U.S. 60,

In requiring disclosure of constitutionally protected as.

sociations, Question 26(a) deters the exercise of First

Amendment rights by those who, in expectation of having

to account for membership in suspect organizations, wil]

“tend to adhere to the most orthodox and uncontroversia]

views.” Watkins v. United States, supra, 354 U.S. at 198

Conceding the validity of the State’s interest in securing

the character and fitness of bar members, in matters touch.

ing the First Amendment, such as free association, the

state must choose “less drastic means” to achieve its pur.

pose. United States v. Robel, 389 U.S. 258, 268. See also,

Aptheker v. Secretary of State, 378 U.S. 500, 507-08, It

was said in Shelton v. Tucker, 364 U.S. 479, 488:

“... even though the governmental purpose be legiti-

mate and substantial, that purpose cannot be pursued

by means that broadly stifle fundamental personal lib.

erties when the end can be narrowly achieved.”

The principle announced by Shelton was subsequently

stated in terms of “precision of regulation,’ NAACP y,

Button, 371 U.S. 415, 438, but the import is the same:

where government pursues a legitimate goal, it must do

so by those means which least inhibit individual liberty.

It should be emphasized that this does not invite a “bal-

ance” of the state’s interest against appellants’ First

Amendment rights. Citing Shelton, this Court recently

rejected the “balancing” argument in this context, and held

that conflicts between governmental interest and individual

rights must “be accommodated by legislation drawn more

narrowly to avoid the conflict.” United States v. Robel,

389 U.S. 258, 268, n. 20.

Konigsberg and Anastaplo

Two Supreme Court decisions since Shelton have con-

sidered the application of its principles to bar admission

inquiries. Konigsberg v. State Bar of California, 366 U.S.

36; In re Anastaplo, 366 U.S. 82. In both of those cases,

applicants were denied admission to the bar for refusal

to answer questions regarding their membership in the

Communist Party. In upholding the state’s right to ask

those questions, the Court conceded that the information

sought could not by itself justify exclusion from the bar.

Nevertheless, the Court held that the state, in the course

of investigating whether the applicant had engaged in

criminal activity, need not be restricted to asking the ulti-

mate question but could seek information which would

allow it to verify independently the applicant’s answer.

While believing the invasion of protected association

permitted by Konigsberg and Anastaplo not to be justified

by any legitimate interest of the state—and believing that

the assumptions upon which it relied have been undermined

by subsequent decisions of this Court*8—there is, in any

case, an important distinction between an inquiry into Com-

munist Party membership and the inquiry of Question

26(a) into “any organization or group of persons... ad-

vocating or teaching that the government . . . should be

overthrown. . . .” Although an infringement of First

Amendment rights flows from compulsory disclosure of

Communist Party membership, the effect is at least limited

to members and potential members of a single organiza-

* Compare Garner v. Board of Public Works of Los Angeles,

341 U.S. 716; Beilan v. Board of Education, 357 U.S. 399 and

Lerner v. Casey, 357 U.S. 468, upon which the Court relied in

Konigsberg, with Keyishian v. Board of Regents, 385 U.S. 589

(see particularly the dissenting opinion of Justice Clark at 623-25).

tion “whose advocacy,” the court below declared to be

“a matter of common knowledge.” A. 165.

Sut what organizations are encompassed by Question

26(a)? Not limited by its terms to organizations actually

engaged in violent overthrow, or to organizations conspir.

ing to that end, or even to organizations concerned with

action at all, the question’s sweeping language would apply

not only to innocent membership in organizations pursuing

unlawful goals (as did the question upheld in K onigsberg)

but to innocent membership in organizations engaged in

mere advocacy. In Konigsberg the assumption that inquiry

into Communist Party membership was relevant followed

from this Court’s respect for congressional findings about

the nature of the Communist Party, including its as.

serted danger to the security of the United States.

Konigsberg v. State Bar of California, supra, 366 US.

at 52. But Question 26(a) Sweeps a much broader range

of associational ties, applying to an unlimited number of

organizations and groups which might be engaged in mere

advocacy of abstract principle. Presumably an organiza-

tion teaching the principles of the Declaration of Inde-

pendence would have to be disclosed. Whatever interest

of the state might be served by inquiry into Communist

Party membership, the interest served by Question 26(a)

is far too tenuous to justify its sweeping inquiry of con-

stitutionally protected associations. As Justice Fortas, in

a concurring opinion, said of a more limited inquiry, such

questions “pass the outermost bounds of reason.” Schneider

v. Smith, 390 U.S. 17, 27.

That is not to say that the Character Committee can

never inquire into an applicant’s prior associations, even

when constitutionally protected. For example, if the Com-

mittee has evidence that an applicant embezzled funds

from his political club, it would naturally be permissible

to ask him about his membership and activities in that

club. Shelton v. Tucker, supra, suggests nothing to the

contrary.

“The question to be decided here is not whether the

State of Arkansas can ask certain of its teachers about

all of their organizational relationships. It is not

whether the State can ask all of its teachers about

certain of their associational ties. It is not whether

teachers can be asked how many organizations they

belong to, or how much time they spend in organiza-

tional activity. The question is whether the State can

ask every one of its teachers to disclose every single

organization with which he has been associated over

a five-year period.” Shelton v. Tucker, supra, 364 U.S.

at 487-88 (emphasis added).

In other words, when some evidence justifying such ques-

tions exists, a narrow and specific inquiry into particular

activities is constitutionally permissible. But propounding

such questions to all applicants regarding all organiza-

tions, in the hope that it may uncover information rele-

vant to character and fitness, is precisely what is con-

demned by Shelton.

That principle was reaffirmed by this Court recently in

Schneider v. Smith, 390 U.S. 17 where a broad inquiry

into past association was invalidated. The Court recog-

nized that

“a saboteur on a merchant vessel may, of course, be

dangerous. But no charge that appellant was a sabo-

teur was made. 1 deed, no conduct of appellant was at

issue before the Commandant.” Jd. at 24-25.

No less has the Constitution demanded of other govern.

mental inquiries into and searches of First Amendment

areas. In the area of legislative investigations, recognizing

the harm which might follow from exposure of beliefs and

associations, this Court has required that an “adequate

foundation .. . be laid before proceeding in such a manner

as will substantially intrude upon and severely curtail or

inhibit constitutionally protected activities .. . .” Gibson

v. Florida Legislative Investigation Committee, 372 US.

539, 557. In the absence of such a foundation justifying

suspicion of unlawful activity, the far-ranging inquiry of

Question 26(a) is not justified by a “compelling state

interest,” td. at 546, and is, therefore, unconstitutional.

We believe this result compelled not only by an analysis

of the cases in this Court but by an appreciation of the

far-reaching impact on associational freedom threatened

by Question 26(a). By focusing on organizational affilia-

tions at a time when membership in certain organizations

is viewed with suspicion by the public and the govern.

ment,”* the question graphically illustrates the dangers

created by any political screening program. Any casual

reader of the daily newspaper is aware of the prolifera.

tion of protest groups in recent years, especially around

** See notes 8 and 9, supra. Recently retired United States Attor-

ney Cecil Poole, from the Northern District of California, accused

the Justice Department of being “out to get the Black Panthers.”

New York Post, Jan. 14, 1970 (p. 18). Assistant Attorney General

Kleindienst has been quoted as saying with regard to obstructive

student demonstrators that “they should be rounded up and put

in detention camps.” New York Times, April 27, 1969 (p. 64).

college campuses. Their membership is shifting, often over-

lapping, their goals elusive and ill-defined." But they

have attracted some of the best of their generation, some

of the brightest, most committed, most idealistic." Though

some who criticize their activities concede that they have

been a force for constructive social change,’® they remain

the subject of widespread public controversy. If, for fear

of having to disclose their activities to the bar, some of

these young men forego perfectly lawful associations, the

First Amendment—and the society at large—will be the

loser. If, by virtue of disclosing these associations, or

failing to disclose associations which the Character Com-

mittee later believes to have goals encompassed by Ques-

tion 26(a), the bar finds it has no place for these young

men, then the legal profession—and the public—will be

the loser.*° If there is a “compelling state interest” re-

lated to this question, it is in its elimination.

B. The Loyalty oaths required by CPLR 9406 and Question

27(b) are vague and overbroad and compel a declaration

of belief in derogation of First Amendment rights.

The First Department’s screening program contains two

separate requirements regarding the applicant’s loyalty.

"See, e.g., Skolnick, The Politics of Protest Ch. 3 (1969).

Jbid. See generally, Keniston, Young Radicals (1968).

*New York Times, Feb. 17, 1970 (p. 32) “School Activists

Praised By a State Commission.” See generally, Crisis at Columbia:

Report of the Fact-Finding Commission Appointed to Investigate

the Disturbances at Columbia University in April and May (1968).

*Compare this Court’s analysis in Lowisiana v. N.A.A.C.P.,

366 U.S. 293, 295;

“it is not consonant with due process to require a person to

swear to a fact that he cannot know . . . or alternatively to

refrain from a wholly lawful activity.”

CPLR 9406 requires, as a condition of admission, that an

applicant “furnish satisfactory proof ... that he believes

in the form of the government of the United States and

is loyal to such government . . .” Question 27(b) asks an

applicant to affirm “without any mental reservation” tha

he is “loyal to and ready to support the Constitution of

the United States.”

Quite apart from the vague terms which characterize

both oaths, their insistence that an applicant hold a par-

ticular belief—and, in the case of Question 27(b), to hold

it “without any mental reservation”—mocks the Constity.

tional requirement that “one be permitted to believe what

he will.” American Communication Association y. Douds,

339 U.S. 382, 412. Of the many indignities inflicted upon

citizens by the variety of oaths which have come before

this Court in recent years,” not until the oaths presented

in this case had any sought to tell a man what he might

and might not believe. With whom he might associate, what

he might advocate, yes; but not what he might believe,

Even the two oaths which this Court has upheld in recent

years, Knight v. Board of Regents, 269 F. Supp. 33%

(S.D.N.Y. 1967), aff’d per curiam, 390 U.S. 36, and Hosack

v. Smiley, 276 F. Supp. 876, aff’d per curiam 390 U.S. 74,

required only a promise to support the Constitution. What

the applicant thought about the Constitution was not

probed. Although inroads into First Amendment freedoms

have been justified upon a showing of a “compelling” state

interest, see, ¢.g., United States v. O’Brien, 391 U.S. 367,

this Court has never qualified the principle, articulated by

Justice Douglas, that the

For a review of these cases, see generally, Note, “Loyalty

Oaths,” 77 Yale L.J. 739 (1968).

“domains of conscience and belief have been set aside

and protected from government intrusion .... What

a man thinks is of no concern to government.” Speiser

v. Randall, 357 U.S. 513, 536 (1958) (concurring

opinion).

See also, Thomas v. Collins, 323 U.S. 516, 531 (the “First

Amendment gives freedom of mind the same security as

freedom of conscience”).

The limitation on freedom of belief imposed by these

oaths is inconsistent not only with this Court’s unequivocal

defense of freedom to advocate™ but with Justice Jackson’s

eloquent indictment of the compulsory flag salute in West

Virginia State Board of Education v. Barnette, 319 U.S.

624. Holding that the state had no greater power to compel

afirmance of a belief than to suppress one, the Court

declared that no official

“ean prescribe what shall be orthodox in polities, na-

tionalism, religion, or other matters of opinion or force

citizens to confess by word or act their faith therein.”

Id. at 642.

That this limitation on official power would extend to

an attempt to compel a declaration of loyalty seems self-

evident. Nevertheless, the court below, without mentioning

Barnette, failed to find any objection to the loyalty pro-

visions. With regard to Question 27(b), the court could see

no objection to requiring an affirmation of loyalty to the

Constitution in view of the constitutional validity of re-

* See, e.g., Brandenberg v. Ohio, 395 U.S. 444: Noto v. United

States, 367 U.S. 290; Scales v. United States, 367 U.S. 203; Yates

v. United States, 354 U.S. 298.

quiring an affirmation to support it. A. 162. That inter.

pretation suggests that the two aflirmations in Question

27(b) mean the same thing, leaving unexplained why both

were included. The seeming invasion of belief aceon.

plished by the phrase “without any mental reservation”

is dismissed by the court with the observation that the

same phrase appears in oaths taken by the judges.” A. 162

We respectfully suggest that there is little difference jp

swearing loyalty “without any mental reservation” from

pledging “undivided allegiance to the government of the

United States.” As to the latter phrase, this Court has

spoken strongly of its implied restriction against any “le.

tures voicing far-reaching criticism of any old or new policy

followed by the Government of the United States.” Baggett

v. Bullitt, 377 U.S. 360, 371-72. That constitutional vice js

magnified in this case when the applicant knows that he

will not only have to swear his loyalty but also bear the

burden of proving it. See Point II D, infra.

As for the belief and loyalty provision of CPLR 9406,

the court accepted the defendants’ interpretation, which

was that it merely tested the applicant’s good faith in

taking the “constitutional oath” required by New York

Constitution, Art. XIII, §1. A. 155. But if belief in a

certain form of government and loyalty to that government

becomes a pre-condition for taking the “constitutional oath”

and, thus, for admission to the bar, then the state inquires

into “what a man thinks” and prescribes “what shall be

orthodox in polities.” Moreover, the court below suggests

that the phrase “form of government” includes “change by

lawful methods.” To compel belief in “change by lawful

*° That fact would, of course, not relieve those oaths or this one of

their constitutional deficiency.

methods” not only violates the teaching of those cases

upholding the right to advocate violent overthrow, but

would preclude from conscientious oath-taking, among

others, the drafters of the Declaration of Independence

and the Director of a National Commission Task Force.”

That the First Amendment would not permit punishment

of those who believed that “lawful methods” did not always

produce needed change is the clear teaching of the ad-

voeacy cases. The restriction on belief imposed by CPLR

9406 could thus be justified only upon some special show-

ing that the bar had to be immunized from the full range

of beliefs which all citizens may hold. It is not enough,

we suggest, to answer that the bar has an interest in havine

lawyers who are dedicated to orderly change. Konigsbe.*

v. State Bar, 366 U.S. 36, 52. Its interest in having suc*

lawyers is certainly no greater than the society’s interest

in fostering national unity. Recognizing the legitimacy of

that interest, however, did not lead the Court to approve

a compulsory flag salute as “a permissible means for its

achievement.” West Virginia State Board of Education v.

Barnette, 319 U.S. at 640. Rather the court held such

** See cases cited at note 22, supra.

**In a Task Force Report submitted to the National Commission

on the Causes and Prevention of Violence, Jerome Skolnick, Diree-

tor of the Task Force, observes :

“The proposition that domestic political violence has been un-

necessary to achieve political goals is ambiguous, but it is

historically fallacious no matter how one interprets it. If it

means that the established machinery has permitted major

‘out-groups’ to move nonviolently up the politico-economic

ladder, it is demonstrably false. .

Similarly, the proposition is false if it means that the estab-

lishment is self-transforming, in that groups in power will

always share that power with newcomers without the pressure

of actual or potential violence.” Skolnick, The Politics of

Protest 15-16 (1969).

compulsion to be inimical to a free society. Similarly the

attempt to secure our legal institutions by punishing those

who do not believe in “change by lawful methods” jg

inimical to the values which those institutions serve.

Even if the threat from “subversive” lawyers were

greater than our history shows—and Judge Motley sug.

gested that the “danger is small,” A. 204—we believe Pro.

fessor Emerson’s apt description of their effect demon.

strates their futility:

“The effort to suppress belief can rarely be successful,

It cannot change opinions or substitute better ones. It

affects chiefly those among the unorthodox who are men

of principle and, by encouraging concealment and de.

ception, destroys the whole basis of public morality.”

Emerson, “Toward A General Theory of the First

Amendment,” 72 Yale L.J. 877, 919 (1963).

C. The committee’s requirement of blanket disclosure of an

applicant’: record of arrests inhibits many prospective at-

torneys from engaging in controversial, though constitution.

ally protected, political activity.

Question 23(b) requires an applicant to state whether

he has ever been summoned or arrested and, if so, to give

the details.

The Committee’s requirement that an applicant disclose

his entire arrest record is a prime example of the over-

broad scope of their political inquiry.

Given the crucial importance of the presumption of in-

nocence in our society, it is highly questionable whether

the state may require the disclosure of arrests which do

not result in convictions as a condition of granting a li-

cense to practice one’s profession. See generally, “Report

of the Committee to Investigate the Effect of Police Arrest

Records on Employment Opportunities in the District of

Columbia” (1967) (hereafter referred to as the Duncan

Report).

Conceding, however, for the sake of this argument, the

existence of some valid governmental interest justifying a

requirement that certain categories of arrest records be

disclosed to defendants, it certainly does not follow that

appellees have the power to require disclosure of every

arrest, no matter how minor the offense and no matter how

unjust and ill-founded such an arrest might have been.

Certainly, where prospective applicants for admission to

the bar have engaged in political activities protected by the

First Amendment and have, nevertheless, been arrested,

they may not be compelled to disclose such arrests to de-

fendants, unless the arrests actually resulted in criminal

convictions.“ To require applicants to disclose such unjust

arrests both makes a mockery of the presumption of inno-

cence and serves to deter large numbers of prospective at-

torneys from engaging in constitutionally protected activity.

It is ironic that a bar applicant, fresh from his initiation

into the traditions of our system of criminal justice, should

be confronted, as a condition of his entry into the practice

of those traditions, with a command that he relinquish the

protection of the most cherished of those traditions—the

presumption of innocence.

In the absence of an adjudication of legal guilt, no ap-

plicant should be required to justify to the state the cir-

** Whether even convictions, when arising out of peaceful protest

activity, are relevant is of some doubt. See Hallinan v. Committee

of Bar Examiners, 421 P.2d 76 (Cal. 1966).

cumstances of an arrest as a condition of being licensed to

practice his profession. As Mr. Justice Black stated, writ.

ing for the Court in Schware y. Board of Bar Examiners,

353 U.S. 232, 241:

“The mere fact that a man has been arrested has very

little, if any, probative value in showing that he has

engaged in any misconduct. An arrest shows nothing

more than that someone probably suspected the person

apprehended of an offense.”

In the highly subjective realm of character and fitness

evaluation, a right to be free from being forced to justify

conduct which resulted in an arrest takes on particular

significance when the conduct at issue was controversial

political activity. Put bluntly, why should a 25 year old bar

applicant who was unjustly arrested during a demonstra.

tion seeking the integration of lunch counters in Selma,

Alabama, be required to justify his conduct to a member of

New York’s Committee on Character and Fitness, whose

views on the propriety of street demonstrations and non-

violent civil disobedience are likely to be diametrically op.

posed to his own? Why should Rudolph Schware have been

required to attempt to justify his arrest for participating in

a 1934 labor dispute and his espousal of the loyalist side in

the Spanish Civil War to a hostile member of New Mexico's

Committee on Character and Fitness? See, Schware y,

Board of Bar Examiners, 353 U.S. 232, 240-243.

It is a primary purpose of the presumption of innocence

to shield persons from disabilities flowing from arrests

which are not followed by convictions. Such a purpose is,

of course, doubly important when the basis of the arrest in

question was controversial, although constitutionally pro-

tected conduct.

The result of a procedure which exposes those contro-

yersial political activities of bar applicants which have

culminated in an unjust arrest to the potentially hostile seru-

tiny of a member of the Character Committee (who will in-

evitably view the conduct in question across the “generation

gap”) is to inhibit prospective attorneys from engaging

in such political activities. If law students fear that their

political beliefs and activities will come under potentially

hostile review by the Committee if they engage in constitu-

tionally protected political activity, they will simply forego

such activity as the price of routine admission to the bar.

And if they do not forego their right to engage in such

activity—for which they may well get arrested—they face

the prospect of inquiry by the Character Committee into

their political conduct and possible denial of admission

to the bar.

The fear of arrest for exercising constitutional rights

is well grounded. One example is the historie non-violent

revolution which is attacking the system of racial sep-

aratism existing in the states of the old Confederacy.

It requires no special insight to recognize that the local

law enforcement apparatus has functioned during the

past decade in many Southern communities as a device

to harass and intimidate civil rights workers. A casual sur-

vey of the decisions of the United States Court of Appeals

for the Fifth Circuit reveals incident after incident of

unlawful arrest in an attempt to harass and intimidate

civil rights workers.”

* See, e.g, United States v. McLeod, 385 F.2d 734 (5th Cir.

1967) ; Achtenberg v. State of Mississippi, 393 F.2d 468 (5th Cir.

1968) ; Kirkland v. Wallace, as Governor of Alabama, 403 F.2d 413

(oth Cir. 1968) ; Davis v. Francois, 395 F.2d 730 (Sth Cir. 1968) ;

Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968). See also,

Shuttlesworth v. City of Birmingham, 394 U.S. 147. Cf., Sobol

v. Perez, 289 F. Supp. 392 (E.D. La. 1968).

Rather than risk the disabilities which may flow from

a civil rights arrest, law students will simply refrain from

engaging in any conduct which might lead to arrest, As

the decisions of the Fifth Circuit grimly attest, in many

localities ia the South, such a decision requires a law stu.

dent to cede his First Amendment rights.

The widespread misuse of the arrest power by local

officials hostile to the civil rights movement has caused

the New York City Council to enact Section AA 41.2.0 of

the Administrative Code in an attempt to shield partic.

pants in the civil rights movement from the stigma of

unjust arrests. Unfortunately, the defendants have not ex.

hibited a similar sensitivity to the very real intimidating

effect which the threat of an unlawful arrest may create,

Prospective attorneys may also refrain from partici.

pating in demonstrations opposing other injustices which

they perceive. Hundreds, probably thousands, of protesters

have been arrested throughout the country in recent years

in violation of their constitutional rights. Charges against

many of the demonstrators so arrested have been fre.

quently dismissed on motion of the respective prosecutors

involved.” However, the stigma of an arrest record re.

mains. It is that stigma and the fear that it will pose an

obstacle to bar admission which will inevitably cause

** See, e.g., Day of Protest: Night of Violence, prepared by the

Southern California affiliate of the American Civil Liberties Union

(1968) ; Dissent and Disorder: A Report to the Citizens of Chicago

on the April 27 Peace Parade (1968) ; Gregory v. City of Chicago,

_—_ _———_

Ne .

° Out of 423 persons arrested last year in Berkeley, 421 had the

charges dismissed, Village Voice, Feb. 19, 1970. One of the counsel

herein represented over 600 persons arrested at a demonstration

near a New York City induction center in December 1967. Charges

against approximately 550 were dismissed on motion of the district

attorney.

“<7 nm ff =

prospective attorneys to refrain from First Amendment

activity Which carries the risk of unjust arrest.

Given the damage which blanket disclosure of raw arrest

records causes in our society, especially in the sensitive

area protected by the First Amendment, it is not surprising

that the propriety of utilizing arrest, rather than con-

vietion, records in investigating the character of an ap-

pliant has been called into serious question. See, ¢.g., '

Duncan Report; The Maintenance and Use of Arrest Rec-

ords: Report and Proposals by the National Capitol Area

Civil Liberties Union (1967); Morrow v. District of Co-

lumbia, 417 F.2d 728 (D.C. Cir. 1969); United States v.

McLeod, 385 F.2d 734 (5th Cir. 1967); Wheeler v. Good-

nan, 306 F. Supp. 58 (D. N. Car. 1969); United States v.

Kalish, 271 I’. Supp. 968 (D. P.R. 1967). Recently, the Bar

Association of the District of Columbia, pursuant to a vote

of its membership held in March, 1967, has adopted a new

application form for prospective applicants which inquires

solely into criminal convictions, rather than requiring the

disclosure of all arrests. In addition, the Federal Civil

Service Commission has modified several questions on

Standard Form 57, “Application for Federal Employment,”

to elicit information solely about criminal convictions and

not merely arrests. Civil Service Commission, Federal

Personnel Manual, letter 4731-2, August 15, 1966.*

*On that Application, the former version of Question 37 read:

“37. Have you ever been arrested, taken into custody, held for

investigation or questioning, or charged by any law enforce-

ment authority? (You may omit: (1) Traffic violations for

which you paid a fine of $30 or less; and (2) Anything that

happened before your sixteenth birthday. All other incidents

must be included, even though they were dismissed or you

merely forfeited collateral.) ”

The present version reads as follows:

“37. Have you ever been convicted of an offense against the

law or forfeited collateral, or are you now under charges for

The Federal Courts have become increasingly aware of

the injustice which may be caused by the mere existence of

an unjust arrest record. In Morrow vy. District of Co.

lumbia, 417 F.2d 728 (D.C. Cir. 1969), the Court of Ap-

peals ruled that the District of Columbia Court of Special

Sessions possessed inherent equitable power to prebhit

the dissemination of what it considered to be an unjust

arrest record. Judge Wright, speaking for the Court, held:

“. .. in view of the extensive documentation of the

harm which comes from dissemination of arrest ree.

ords, to employers at least, including the likelihood

that employers cannot or will not distinguish between

arrests resulting in convictions and arrests which do

not, an order regarding the dissemination of arrest

records in a case dismissed by the court is reason.

ably necessary to give complete effect to the court's

order of dismissal.” Jd. at 741.

In situations in which the defendant was unjustly ar-

rested, Judge Wright specifically notes that it may be nee.

essary to impose an absolute bar upon the use or dissem.

ination of such records. Morrow vy. District of Columbia,

any offense against the law? (You may omit: (1) Traffic vio-

lations for which you paid a fine of $30 or less; (2) Any

offense committed before your twenty-first birthday whieh

was finally adjudicated in a juvenile court or under a youth

offender law.)”

The former version of Question 38 read:

“38. While in the military service were you ever arrested for

an offense which resulted in a trial by deck court or by sum-

mary, special or general court-martial ?”

Question 38 now reads:

“38. While in the military service were you ever convicted by

general court-martial ?”

417 F.2d at 742. Certainly, where the unjust arrest grew

out of constitutionally protected First Amendment activity,

an absolute bar on the dissemination of the arrest record

should be required.

In United States v. McLeod, 385 F.2d 734 (5th Cir. 1967),

the Fifth Cireuit, faced with a series of criminal prosecu-

tions designed to prevent Negroes from registering to vote,

ordered that the prosecutions be enjoined and that any

record of arrest be expunged.

In Wheeler v. Goodman, 306 F. Supp. 58 (W.D. N. Car.

1969), a three judge United States District Court declared

North Carolina’s vagrancy statute unconstitutional and

ordered the expunging of the plaintiffs’ arrest records.

In United States v. Kalish, 271 F. Supp. 968 (D. P.R.

1967) the court ordered the physical destruction of a po-

tential bar applicant’s arrest record.

In view of the increasing criticism of the indiscriminate

use of arrest records in our society™ and in view of the

pall which the fear of an unjust arrest casts over a prospec-

tive attorney’s First Amendment behavior, the blunder-

buss approach of defendants to a prospective applicant’s

arrest record must be condemned.”

“The Duncan Report estimates that the disabilities flowing

from arrests not resulting in conviction fall most heavily upon

residents of ghetto areas. The Report estimates that between 60-90

per cent of the adult male population of Washington, D. C.’s ghettos

are virtually foreclosed from 25 to 50 per cent of the jobs available

to them in relation to their skills by virtue of the existence of an

arrest record. How many qualified members of minority groups are

discouraged from even considering law as a career because they

— _ arrest records foreclose the possibility of admission to

= It is, of course, an @ fortiori principle that the defendants’

requirement that any participation in the judicial process as either

D. The requirement of CPLR 9406 that an applicant bear the

burden of proving his loyalty inhibits the exercise of Firs

Amendment rights.

The gross invasion of First Amendment rights which

flows from the demand of broad disclosure of information

pertaining to political beliefs, associations and activities

is compounded by the requirement of CPLR 9406 that the

applicant bear the burden of proving his loyalty. The

mere equirement that an applicant affirm his loyalty we

believe, for the reasons stated in Point ITB, supra, vio.

lates the First Amendment. To require him in addition,

after having compelled such wholesale political disclosure,

to prove his loyalty is seriously to endanger the exercise

of First Amendment rights. Speiser v. Randall, 357 US.

513, which Judge Motley correctly describes as “the heart

of plaintiffs’ case,” A. 199, dealt with a requirement that

a taxpayer prove that he did not advocate the overthrow

of the government by force or violence in order to qualify

for a tax exemption. The Court held that the imposition

of this burden on the taxpayer would cause him to avoid

politically controversial activities for fear of being unable

to prove his loyalty.

“. . . the man who knows that he must bring forth

proof and persuade another of the lawfulness of his

a plaintiff or a witness be disclosed is also an overbroad inquiry

serving to deter many law students from engaging in protected

activity. If participation in an action brought pursuant to 42

U.S.C, 1983, or a related statute, will inevitably cause a law stu-

dent’s controversial political beliefs to be made known to the

Character Committee, he will be loath to participate as a party.

Moreover, if serving as a witness in a criminal proceeding will like-

wise draw attention to an applicant’s political beliefs, he will be

deterred from appearing.

conduct necessarily must steer far wider of the un-

lawful zone than if the State must bear these burdens.”

Id. at 526.

See also, Haskett v. Washington, 294 F. Supp. 912, 916

(D.D.C. 1968) (Wright, J. concurring) ; Heckler v. Shepard,

243 F. Supp. 841 (E.D. Idaho 1965). The rationale of

Speiser was carried into the obscenity area in Freedman

y. Maryland, 380 U.S. 501, where this Court held that the

burden of going forward and of ultimately proving that

a motion picture was censorable must be on the state. And

in Lamont v. Postmaster General, 381 U.S. 301, 307 this

Court held that the requirement that “ ... the addressee

in order to receive his mail must request in writing that it

be delivered ... amounts in our judgment to an unconstitu-

tional abridgment of the addressee’s First Amendment

rights.”

The majority in the court below distinguished Speiser

on two grounds. A. 152. Treating the second first, they

suggested that there was no “unequivocal indication” that

it imposes a true burden of proof as distinguished from

a burden of coming forward with evidence.” Ibid. Appel-

lants believe with Judge Motley, A. 198, that that inter-

pretation defies the clear language of the statute. More-

over, Speiser suggests that, in any case, such a distinction

might have no meaning, for even to require the applicant

to come forward initially with evidence of his loyalty may

be constitutionally deficient.

“... When the constitutional right to speak is sought to

be deterred by a State’s general taxing program due

process demands that the speech be unencumbered

until the State comes forward with sufficient proof to

justify its inhibition.” Speiser vy. Randall, 357 U.S. at

528-29 (emphasis added.)

The majority below also said that the Speiser rationale

did not apply to oaths “required of ‘a limited Class of

persons in or aspiring to public positions by virtue of

which they could, if evilly motivated, create serious danger

to the public safety.’” A. 152. “Lawyers,” the majority

said, “fit the latter rubric.” But that misinterprets the

distinction Speiser was making. The “limited class of

persons” to which the Court referred was the group er.

cluded by the oath and not the one taking it. The oath

cases which Speiser sought to distinguish involved sub.

versive disclaimer oaths and it was the “limited class” of

subversives to which they applied. There is no suggestion

in Speiser that the oaths in those cases would have been

approved if they required, as here and as in Speiser, proof

of loyalty, even of a limited class.

Even if we accept, for the sake of argument, the ma.

jority’s assumption that the obligations and responsibili-

ties of lawyers are greater than those of the taxpayers

with which Speiser was concerned, therefore Justifying

stricter requirements of loyalty, we do not agree that the

broad-gauge device of placing upon applicants to the bar

the burden of proving their loyalty may be constitutionally

sanctioned. When, in the past, men have been imprisoned

merely for public opposition to war, see Chafee, Freedom

of Speech in the United States, quoted in Emerson, Haber

and Dorsen, Political and Civil Rights in the United States

55-60 (1967), can an applicant who makes publie his pro-

test against the war have any assurance that he will be

able to “furnish satisfactory proof” of his loyalty? Rather

it is likely that he will forego his protest and “free expres.

sion—of transcendent value to all society, and not merely

to those exercising their rights—might be the loser.” Dom-

browski v. Pfister, 380 U.S. 479, 486. Given the availability

of “less drastic means” to regulate lawyers’ conduct, the

requirement that an applicant prove his loyalty cannot

stand.

POINT Il

The unreascuably broad search of an applicant’s pri-

vate life undertaken by the questionnaire and affidavits

serves no substantial interest of the state and thus

offends his right to privacy protected by the First,

Fourth, Ninth and Fourteenth Amendments.

Apart from the infringement of traditional liberties flow-

ing from the defendants’ inquiries, the indiscriminate prob-

ing by the questionnaire and affidavits of the applicant’s

personal life, past and present, leaves little left of the

notion that some areas of a person’s being are kept free

from government intrusion. Though this Court has not

previously faced the precise question of how far the state

may inquire into an applicant’s personal affairs, related

eases suggest the emergence of the principle we seek to

establish here.

All three judges below recognized that there exist some

limitations on government probing apart from the specific

provisions of the Bill of Rights. The majority, in striking

down Question 31, which requested information concerning

any incident “which has any favorable or detrimental bear-

ing on your character or fitness,” held:

“We find no interest of the state sufficiently compelling

to require an applicant to engage in the soul-searching

of his entire past life demanded by Question 31.” A. 166.

Judge Motley, considering the home life affidavits,” saiq

“There also has been an improper invasion of the right

of privacy. The hallmark of civilization is that when

a man closes the door to his home and retreats to the

privacy thereof the eyes and ears of the State remain

outside. Griswold v. Connecticut, [381 U.S. 479]. The

state simply cannot ask every affiant who supports an

applicant for admission to the bar with whom the ap.

plicant lives or what the inside of his parents’ home is

like. There must be some specific information relating

to those qualities expected of one about to enter the

legal profession before these questions can be asked of

a particular applicant. Gibson v. Florida Legislative

Investigation Committee, [372 U.S. 539].” A. 196,

Thus in the court below, though there are differences

regarding specifics, there is agreement on the principle that,

at some point, the government is inquiring too far, that it

cannot require so much “soul searching” as to invade the

“right to privacy.” It is clear, however, that the Character

Committee observes no such principle as it wanders through

an applicant’s past, extracting the most trivial details,

blithely unconcerned about the relevance of what is sought."

** Although the affidavit in use in the Second Department is not

directly involved in Law Students ( ‘teil Rights Research Council

Inc. v. Wadmond, it is challenged in the companion case, and is

used here to illustrate defendants’ broad interpretation of their

statutory mandate. The First and Second Department affidavits are

described in Judge Motley’s opinion (A. 172-176).

%* Two representative examples: Question 22 asks the facts con-

cerning any “charges or complaints, formal or informal” made

against the applicant while a member of the armed forces. Not

limited by its terms to those complaints which were either sub-

stantial or substantiated, it seeks, presumably, the details of a

sergeant’s complaint about an improperly made bed. Questions

eS FS VS PS we

o—-

Qur concern, however, is not simply with the uncontrolled

accumulation of trivia. Rather we are particularly wed

ed that the Committee, in investigating an appuaants

yam asserts the authority to probe an applicant’s

ter, . . .

at and thus to scrutinize his life style and private

home life,

morality.

The present home life affidavits, though broad and intru-

sive, do not reveal the true breadth of the Committee’s

claimed authority. At the start of this litigation, both the

First and Second Departments required third-party affi-

davits that called for a characterization of the applicant’s

family and home environment, on the basis of which detailed

conclusions about his and his family’s “moral character”

were to be given. Although many of the specific inquiries

have been removed as a result of this litigation (A. 174-176),

details regarding the applicant’s “moral character”—a term

which is nowhere defined—are still sought.

The proposition upon which all three judges agreed be-

low, that there must be some compelling state interest

shown before a person can be made to produce informa-

tion about himself, was articulated by Chiet Justice Warren

as a requirement that

“the courts strike a balance between the public need

for a particular interrogation and the right of citizens

to carry on their affairs free of unnecessary govern-

24(d) and (e) inquire about any “claim or demand,” not the subject

of an action or legal proceeding, made either by or against the

applicant. Thus, a playmate’s request for the return of his bat and

ball would be among the accumulated information by which the

committee would judge an applicant’s fitness to practice law. In

that regard, it is important to bear in mind the warning in the

instruction on the application that failure to disclose any informa-

tion called for by any question may result in denial of admission.

mental interference.” Watkins v. United States, 34

U.S. 178, 205-06.

In recent years, the concern expressed in Watkins has

begun to emerge as a right of privacy. Whether that right

is implied by the Ninth Amendment, the penumbras of

specific guarantees of the Bill of Rights, or the guarantee

of due process (see the various opinions in Griswold y. Con.

necticut, 381 U.S. 479) this Court has now made it clear,

in many different contexts, that it will not abide unreason.

able intrusions by the government into an individual’s home

or private affairs. See Stanley v. Georgia, 394 U.S. 557 ani

eases cited in Katz v. United States, 389 U.S. 347, 350

at n. 5. It is of no relevance that the state in this case

secures its information under the threat of denying

admission to the bar rather than by eavesdropping on his

private conversations. In each case, the information is

given involuntarily. The interest which needs to be pro-

tected in each case is “the inviolability of the human

personality and of the right of each individual ‘to a private

enclave where he may lead a private life’... .” Tehany.

Shott, 382 U.S. 406, 414. That interest was described else.

where as “the sanctity of a man’s home and the privacies

of life.” Boyd v. United States, 116 U.S. 746. It is an in.

terest that is fundamental to a free society, emerging “from

the totality of the constitutional scheme under which we

live.” Poe v. Ullmann, 367 U.S. 497, 521 (Douglas, J., dis.

senting). Its importance to the individual’s enjoyment of

freedom has been eloquently described by one commentator

as follows:

“Privacy is a special kind of independence, which can

be understood as an attempt to secure autonomy in at

least a few personal and spiritual concerns, if neces-

— = 77

a ee, |

sary in defiance of all the pressures of modern so-

ciety... . The free man is the private man, the man

who still keeps some of his thoughts and judgments

entirely to himself... .” Rossiter, “The Pattern of

Liberty” in Konvitz and Rossiter (eds.), Aspects of

Liberty, 15-17 (1958).

We suggest here, as we have with regard to the political

inquiries, see Point II, supra, that the vice of the Com-

mittee’s wholly undefined, and therefore limitless, investiga-

tion into an applicant’s “moral character” can only be

appreciated in the context of the times. Only by under-

standing the hostility which the changing morals and life

styles of our youth have elicited from those in authority®*

can we appreciate the abuses threatened by the Committee’s

inquiry into the privacies of an applicant’s life.

In these days of sophisticated snooping devices, psycho-

logical testing, computerized information and proposed

national data banks,** the values subsumed by Justice

Brandeis under ‘the right to be let alone,” Olmstead v.

United States, 277 U.S. 438, 478, are particularly in jeop-

ardy. We believe that concerns which have led this Court

on other occasions to bar unlawful intrusions into a per-

son’s private life are present in this case.

55 See, e.g., New York Times, Feb. 25, 1970 (p. 26) relating the

Cook County Sheriff’s glee in displaying pictures of the convicted

defendants in the “Chicago conspiracy trial” after having been

given haircuts.

At least this one aspect of life style, long hair, has been accorded

constitutional protection. Richards v. Thurston, 264 F. Supp. 449

(D. Mass. 1969).

See generally, Westin, Privacy and Freedom (1967).

POINT IV

An injunction should issue against the vague and over.

broad statute pursuant to which the Character Commit.

tee has exercised its unconstitutional authority,

The changes in the Character Committee’s practices which

have resulted from this litigation have left unaffected the

statutory standard from which the Committee derives jts

authority. As Judge Motley indicated:

“‘The substance of the statutory and regulatory com.

plex remains and from the outset .. . [ plaintiffs’) basic

claim has been that they are aggrieved by its applica.

tion.’ Keyishian v. Board of Regents of University of

State of New York, 385 U.S. 589....” A. 178.

See also, United States v. Aluminum Company of America,

148 F.2d 416 (2d Cir. 1945). The modification of some of

the questions complained of has not diminished appellants’

basic constitutional claim that the standard of “character

and fitness,” without further statutory definition, continues

to permit the far-reaching practices in which the defendants

have engaged. An injunction against these unconstitutional

statutes and their application should therefore issue.

Burt NEUBORNE

Of Counsel

Metvin L. WuLr

Sanrorp Jay Rosen

CONCLUSION

The judgment appealed from should be reversed to

the extent it fails to grant all relief requested.

Respectfully submitted,

Auan H. Levine

New York Civil Liberties Union

156 Fifth Avenue

New York, New York 10010

JEREMIAH S, GuTMan

Levy, GuTMAN anv GoLpBERG

363 Seventh Avenue

New York, New York 10001

Attorneys for Law Students Civil

Rights Research Council, Inc.,

et al,

APPENDIX

———

APPENDIX

Statutes Involved

New York Crvim Practice Law anp Rvutes

Article 94—Admission to Practice

Rutz 9401. Committee

The appellate division in each judicial department shall

appoint a committee of not less than three practicing law-

yers for each judicial district within the department, for

the purpose of investigating the character and fitness of

every applicant for admission to practice as an attorney

and counselor at law in the courts of this state. Each mem-

ber of such committee shall serve until his death, resigna-

tion or the appointment of his suecessor. A lawyer who has

been or who shall be appointed a member of the committee

for one district may be appointed a member of the commit-

tee for another district within the same department.

Rute 9404. Certificate of character and fitness

Unless otherwise ordered by the appellate division, no

person shall be admitted to practice without a certificate

from the proper committee that it has carefully investigated

the character and fitness of the applicant and that, in such

respects, he is entitled to admission. To enable the commit-

tee to make such investigation the committee, subject to the

approval of the justices of the appellate division, is au-

thorized to prescribe and from time to time to amend a

form of statement or questionnaire on which the applicant

shall set forth all the information and data required by the

committee and the appellate division justices, including

specifically his present and such past places of actual resi.

dence as may be required by the committee and the appel.

late division, listing the street and number, if any, and the

period of time he resided at each place.

Rute 9406. Proof

No person shall receive said certificate from any com.

mittee and no person shall be admitted to practice ag ap

attorney and counselor at law in the courts of this State,

unless he shall furnish satisfactory proof to the effect:

1, that he believes in the form of the government of the

United States and is loyal to such government;

2. that he is a citizen of the United States;

3. that he has been an actual resident of the state of

New York for six months immediately preceding the sub.

mission of his application for admission to practice and

that such residence has continued until the final disposition

of the application for admission to practice; and

4. that he has complied with all the requirements of this

rule and with all the requirements of the applicable Statutes

of this state, the applicable rules of the court of appeals and

the applicable rules of the appellate division in which his

application is pending, relating to the admission to practice

as an attorney and counselor at law.

Jupiciary Law $90(1) (a)

§90. Admission to and removal from practice by appellate

division; character committees.

1. a. Upon the state board of law examiners certifying

that a person has passed the required examination, or that

i a |

the examination has been dispensed with, the appellate divi-

sion of the supreme court in the department to which such

person shall have been certified by the state board of law

examiners, if it shall be satisfied that such person possesses

the character and general fitness requisite for an attorney

and counsellor-at-law, shall admit him to practice as such

attorney and counsellor-at-law in all the courts of this state,

provided that he has in all respects complied with the rules

of the court of appeals and the rules of the appellate divi-

sions relating to the admission of attorneys.

New York Jvupicrary Law

Appendix:

Rules of the Court of Appeals for the Admission of

Attorneys and Counselors-at-Law.

Rule VIII. Proof of Moral Character.

VIII-1. General Regulation.

Every applicant for admission to the Bar must produce

before a Committee on Character and Fitness appointed

by an Appellate Division of the Supreme Court and file

with such Committee evidence that he possesses the good

moral character and general fitness requisite for an at-

torney and counselor-at-law as provided in Section 90 of

the Judiciary Law, which must be shown by the affidavits

of two reputable persons residing in the city or county in

which he resides, one of whom must be a practicing attor-

ney of the Supreme Court of this State.

VIII-2, Supporting Affidavits.

Such affidavits must state that the applicant is, to the

knowledge of the affiant, a person of good moral character

and must set forth in detail the facts upon which such

knowledge is based. Such affidavits shall not be conclusive,

and the court may make further examination and inquiry

through its Committee on Character and Fitness or other.

wise.

VIII-3. Certificate of Board of Law Examiners,

Every applicant who pursued the study of law pursuant

to these Rules must file with such Committee on Character

and Fitness his certificate from the State Board of Law

Examiners showing compliance with these Rules.

VIII-4. Discretion of Appellate Division.

The justices of the Appellate Division in each department

Shall adopt for their respective departments such addi-

tional rules for ascertaining the moral and general fitness

of applicants as to such justices may seem proper.

"7 3A Ses

22.

Excerpts From Application for Admission to

the Bar, First Judicial Department

Have you ever been rejected for service i any of the

armed forces of the United States or of any other

country? If your answer is “Yes,” give date and rea-

son, stating facts fully, whether the reason be physical,

mental, moral or otherwise and submit photocopy of

any documentary proof thereof.

As a member of any armed forces have you been the

subject of any charges or complaints, formal or in-

formal, or have any proceedings been instituted against

you, or have you been a defendant in any court mar-

tial proceeding? If answer is “Yes,” state the facts.

State whether you ever have

(a) testified or been called as a witness in any action,

proceeding or investigation to which you were not

a party?

(b) been ticketed, or summoned, or arrested, or taken

into custody, or indicted, or convicted, or tried

for, or charged with, or pleaded guilty to, the vio-

lation of any law, ordinance, traffic or parking

regulation or the commission of any felony or

misdemeanor, or been requested to appear before

any prosecuting or investigative agency in any

matter?

(Indicate all such incidents, including proceedings

as a juvenile or youthful offender, no matter how

minor the infraction or whether guilty or not.

Although a conviction may have been expunged

24.

26.

from the records by order of court, it nevertheless

should be disclosed in the answer to this question.)

(f) been a party to or otherwise involved in any ae.

tion, proceeding or investigation (civil or crim;

nal) not covered by answers to the foregoing

subdivisions hereof?

If your answer is “Yes” to any subdivision of this

question indicate the subdivision and state the facts

in detail below and give in each case name and locality

of court or agency, dates of beginning and termination

of action or proceeding, and the judgment or other

disposition.

(d) Has any one ever asserted as a matter of right

a claim or demand against you which has not been

made the subject of any action or legal proceeding!

sitinhidiliadaliaianas If so, state the facts and the present

status of the matter.

(e) Have you ever asserted as a matter of right any

claim or demand against any person, partnership

o* corporation, or governmental agency which has

not been made the subject of any action or legal

proceeding? ........................ If so, state the facts and

the present status of the matter.

(a) Have you ever organized or helped to organize

or become a member of any organization or group

of persons which, during the period of your men-

bership or association, you knew was advocating

or teaching that the government of the United

States or any political subdivision thereof should

be overthrown or overturned by force, violence or

(b)

27. (a)

any unlawful means? If your answer is in the

affirmative, state the facts below.

If your answer to (a) is in the affirmative, did

you, during the period of such membership or

association, have the specific intent to further the

aims of such organization or group of persons to

overthrow or overturn the government of the

United States or any State of any political sub-

division thereof by force, violence or any unlawful

means?

Is there any reason why you cannot take and sub-

scribe to an oath or affirmation that you will sup-

port the constitutions of the United States and

of the State of New York? If there is, please

explain.

(b) Can you conscientiously, and do you, affirm that

you are, without any mental reservation, loyal to

and ready to support the Constitution of the United

States?

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.