IN RE ZIPKIN

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Argument of Heywood H. Davis

Chief Justice Earl Warren: Number 288, in the matter of the determination of good moral character of Michael Zipkin, Petitioner.

Mr. Davis.

Mr. Heywood H. Davis: Mr. Chief Justice and may it please the Court.

This is a Schware, first, Konigsberg type case.

The issue is relatively clear-cut.

Whether commissioner -- whether petitioner has been denied permission to take the Missouri Bar Examination in violation of the Due Process Clause of the Fourteenth Amendment because there is no rational justification in the record for the finding of the Missouri Board of Law Examiners that petitioner is not a person of good moral character.

Justice William J. Brennan: There's no First Amendment --

Mr. Heywood H. Davis: There is no First Amendment --

Justice William J. Brennan: -- complication below is it?

Mr. Heywood H. Davis: That's correct.

The facts are more involved.

In June of 1960 at the age of 25, petitioner, Michael Zipkin from Kansas City, graduated from the University of Missouri Law School.

He had previously been investigated twice as to his moral character by regional bar committees and twice found to be of good moral character, once, when he filed his law student registration form and, later, when he filed to take the Missouri Bar Examination.

He took the Missouri Bar in June of 1960 but did not pass.

While the papers were being graded, however, a complaint was raised against him and, when the results of the bar examination were announced, petitioner was advised that if he wanted to take a second bar exam, the Board would have to inquire further as to his character.

The petitioner advised the Board that he did want to take a second examination and the Board advised him that the hearing would be held and that the hearing would be particularly directed to the questions of whether he had held himself out as an attorney in connection with a certain divorce litigation between a Mr. and Mrs. Baurichter in Columbia, Missouri and whether he had influenced or attempted to influence witnesses at the hearing before the State Board of Healing Arts of a Dr. Freeman, a Columbia, Missouri psychiatrist.

The Board of Healing Arts --

Justice John M. Harlan: There's no suggestion, I take it, that he was flunked on his examinations because a complaint had been filed against him.

Mr. Heywood H. Davis: That is correct, Mr. Justice.

Justice John M. Harlan: There's no suggestion of that kind.

Mr. Heywood H. Davis: That is correct.

He failed the bar exam and this has to do only as to his moral character.

The State Board of Healing Arts hearing on Dr. Freeman was held in June of 1960 and resulted in Dr. Freeman's license being revoked for unprofessional conduct.

Petitioner's hearing was held in Columbia on October of 1960, as scheduled.

The witnesses who testified were six, the Board subpoenaed plus Mrs. Baurichter, the individual involved in the divorce litigation, and petitioner, himself.

Carl Sapp, the first Board witness, a Columbia, Missouri attorney, testified that he'd known petitioner casually for six or seven months.

That, while he was not acquainted with his reputation, “his conversation and conduct at the times that I have seen and talked to him have been above reproach and he has conducted himself as a gentleman in my presence” and, Mr. Sapp said that he would sign a character affidavit for petitioner.

Mr. Sapp also testified that he represented Dr. Freeman at his hearing, that he never requested petitioner to interview witnesses or obtain statements and that, to his knowledge, petitioner had never done so.

Mr. Sapp said the petitioner never played a part in the Freeman hearing.

Mr. Sapp also testified regarding events related to a divorce proceeding filed by his client, Mrs. Baurichter, who was a patient of Dr. Freeman's against her husband --

Justice Potter Stewart: Everybody sounds as to being a patient of this doctor's.

Mr. Heywood H. Davis: That's correct, Mr. Justice, just about everyone.

Justice Potter Stewart: I mean, certainly, all the -- everybody involved in this case.

Mr. Heywood H. Davis: That is correct.

Mr. Stap -- Sapp stated that there was considerable community feeling in Columbia by reason of the Freeman hearing and the Baurichter divorce proceeding and that, in June of 1960, there were rumors all over the community about Dr. Freeman and Ada Margaret Baurichter, most of which were believed whether there was evidence or not.

Mr. Sapp said that the issue of petitioner's character at this law examiner's hearing was very much tied in with the community feeling toward Dr. Freeman and Mrs. Baurichter.

The second Board witness, Mr. Baurichter testified that he'd known petitioner probably a year, that he had been on friendly terms with him, and had good relations with his friends, that petitioner had been a guest in the Baurichter home, and that he saw no reason to see otherwise than that petitioner was a person of good reputation.

Mr. Baurichter also testified that he was estranged from his wife, that petitioner and Mrs. Baurichter had come out to the home at the time Mrs. Baurichter moved out since petitioner helped her move some furniture, that petitioner later came out with Mrs. Baurichter to take an inventory which Mr. Sapp wanted and that, on this latter occasion, petitioner made the statement that “I think I know a little more about it than you do.

I am a lawyer.”

Mr. Baurichter's hired hand, James Earl Grant, the third Board witness, testified to the same effect as to the attorney representation charge.

It can be noted at this point, however, that Mrs. Baurichter and petitioner both denied that any such attorney representation was made, testifying to the effect that petitioner said “I possibly know more of the law than you do” or words to that effect.

In any event, this testimonial variance became inconsequential because the Board of Law Examiners in their opinion expressly found that petitioner was not disqualified on the ground that he had held himself out as an attorney.

The fourth Board witness was Professor Edmond R. Anderson.

Justice John M. Harlan: That issue, then, is out of the case, everything you've been talking about up to now.

Mr. Heywood H. Davis: The issue as to the --

Justice John M. Harlan: Representation.

Mr. Heywood H. Davis: -- attorney representation charge, that is correct, but it ties in with this whole question, Mr. Justice Harlan and, therefore, I mentioned it.

Justice Potter Stewart: It's in the case insofar as you're going to argue that they couldn't -- the Board could not have consistently decided that question that way and the question that's -- that is here, the way they did decide it, isn't it?

Mr. Heywood H. Davis: That's correct.

Professor Anderson testified that he had known petitioner over two years, that he knew him as a student and socially, that he thought petitioner met the requirements for admittance to the Missouri Bar and the petitioner was fit to be a member of the Bar.

Professor Anderson also testified that petitioner's reputation for character and truthfulness was good and that everybody that I know whose judgment I would respect around here has also thought well of Michael Zipkin and, in Kansas City where I understand he lives now, former students of mine speak well of him.

Professor Anderson also testified that his wife had been a patient of Dr. Freeman and that Dr. Freeman's hearing before the State Board of Healing Arts was widely publicized and discussed in conversations and by rumors in the area.

The fifth Board witness was Dean Joseph Covington of the Missouri Law School.

He testified that he knew petitioner only in his capacity a dean -- as dean, that he was not familiar with his reputation.

That, in regard to the requirements of character and fitness, he had no knowledge that would prevent petitioner from being a member of the Bar and that, as far as the law school's records indicated, petitioner was -- had good grades and good background.

Mr. Baurichter testified she'd known petitioner approximately a year-and-a half, that she became acquainted with him when they were both patients of Dr. Freeman and participated in certain group activities that Dr. Freeman stimulated, that petitioner was very highly spoken of, and that she would say his reputation was good.

Michael J. Trombley, the sixth Board witness, was the main one against petitioner.

He had received his law degree in Missouri in February of 1960, the semester before petitioner graduated.

And he testified that he first became acquainted with petitioner when they were freshmen in law school, that they were then on friendly terms, close friends at one time, that they talked a lot and did things together, and that they had been in Dr. Freeman's home along with Mrs. Trombley, the witness' wife, and the Bauritchters, and that they have not associated together, petitioner and Trombley, as they once did because, well, primarily over this Dr. Freeman deal.

Trombley explained that he and his wife had been patients of Dr. Freeman at one time and were in association with him that -- the situation came up where a lot of things were being questioned.

He, Dr. Freeman, was acting in a questionable manner and so forth at which time, we broke off relationship with Dr. Freeman.

Trombley stated that petitioner came over to the Trombley home twice after that, that they talked about Dr. Freeman and that their friendship just ended right there.

Justice Potter Stewart: Dr. Freeman -- I know he's, I gather he's a psychiatrist.

Was he a psychoanalyst or what was he?

Mr. Heywood H. Davis: He was a psychiatrist, as far as I know, Your Honor.

There's nothing more than that in the record.

Justice Potter Stewart: Some indication that he believed in group therapy.

Mr. Heywood H. Davis: That's correct.

There is evidence in the record that he did believe in group therapy and various witnesses testified as to social events, roller skating, parties, and that sort of thing that his patients had.

Justice Potter Stewart: It must have been big parties.

As I said, [Laughter] the whole town seems to be his patient.

Mr. Heywood H. Davis: It would appear that way.

Justice Felix Frankfurter: What popular -- I ought to know, but I don't, -- what's the population of Kansas City?

Mr. Heywood H. Davis: Kansas City?

Justice Potter Stewart: It's in Kansas City.

Mr. Heywood H. Davis: Kansas City, about 500,000, Columbia --

Justice Felix Frankfurter: Any (Inaudible) of the university?

Mr. Heywood H. Davis: I would say -- Mr. Coburn says about 35,000.

Justice Felix Frankfurter: Is it the seat of the university?

Mr. Heywood H. Davis: It is the seat of the University of Missouri and two other educational institutions, relatively small educational town.

Justice Felix Frankfurter: High I.Q. quotient though.

High I.Q. quo --

Mr. Heywood H. Davis: Yes, sir.

Yes, sir, very definitely.

Trombley testified that the break between petitioner and himself had nothing to do with petitioner's character that it was more his association with Dr. Freeman.

Trombley further testified that he and his wife employed a housekeeper by the name of Irene Werhey who lived in an apartment in their basement and, yes, who was also a patient of Dr. Freeman and had been for over a year.

That, while she was under treatment from him, she was informed that she was to appear against him at this hearing of his, that she was very confused and asked Trombley what she should do, and Trombley told her that she should tell the truth.

Irene, the housekeeper, then went to Dr. Freeman, according to Trombley's testimony, and told Dr. Freeman that she was going to be called at his hearing, that she was going to tell the truth, and Dr. Freeman told her that that would not be wise, this, all according to the testimony of witness Trombley.

Trombley testified that, within a few days after that and before the Freedman hearing, a call came in from petitioner that Mrs. Trombley first answered the telephone and that he answered a few minutes or a few seconds later on an extension and that everybody was speaking.

Trombley testified as to the substance of the conversation as follows and, here, with the Court's permission, I'll read from page 10 of the petitioner's brief where the record is quoted.“

Sir, Mr. Zipkin was talking to my wife when I picked up the receiver.

He mentioned the fact that he was helping Dr. Freeman with his case and that things were looking well and that there was some new material or something new had come up but there was a problem in that Irene, I mean, Mrs. Werhey was in a truth-telling mood and that she felt -- he felt that my wife and I should meet with he and Dr. Freeman to see what could be done about Mrs. Werhey.”

Question: “Now, was there any further conversation other than that?”

“Well, I think that this time, I interjected and my wife had been doing all the talking.

I said ‘are you trying to intimidate a witness?

What is going on?'

He said ‘I think it would be better for everybody all the way around if we met and decided what to do with Mrs. Werhey.'”

Trombley testified that he gratuitously represented two of the witnesses at the Freeman hearing, including Ms. Irene, the housekeeper but that, after the telephone call by petitioner, he had no further conversations with petitioner with reference to Dr. Freeman's hearing, that he had no knowledge that petitioner ever approached Irene personally either before or after the telephone conversation.

And, in fact, in response to a Board member's question as to what in particular caused him to accuse petitioner of attempting to influence a witness, Trombley replied “I sort of maybe jumped to conclusions, but you take the preceding incident that I discussed that Irene had told me about and connected it with this incident.”

When asked about petitioner's reputation for voracity and morality, Trombley replied “I don't think it is particularly good.”

After stating he had made up his mind to this during the last few months of their relationship and that he had no opinion in 1959, Trombley admitted, upon further questioning, that he had been a character witness for petitioner in his 1959 divorce case and that he had then testified that petitioner's reputation in the community for voracity and morality was good.

The final witness was petitioner, himself.

He testified that he was introduced to Dr. Freeman by the Trombleys in December of 1958.

That he, thereafter, became a patient of Dr. Freeman, that he went to him because of his mari -- of his own marital difficulties and because he was having difficulty concentrating on his studies.

Petitioner testified that, at that time, “Trombley was the closest friend I ever had that I considered Mr. and Mrs. Trombley to be very close.”

Petitioner and Trombley, petitioner testified, sat together in the law classes, helped each other with their examinations.

Trombley had been a witness at petitioner's divorce proceeding and Trombley had been instrumental in getting petitioner a place to live at the house of the legal fraternity to which petitioner did not belong after his divorce.

As to what precipitated the rift between them, petitioner stated that Trombley developed an almost fanatical hatred of Dr. Freeman, that when the Trombleys separated from Dr. Freeman, petitioner did his best to maintain his friendship both with the Trombleys and Dr. Freeman but that, gradually, this became impossible.

That, every time he went over to the Trombleys even to comfort him after Trombley's bar exam, Trombley would go and do -- and harangued about Dr. Freeman, and that the telephone conversation just ended anything.

Petitioner testified that “Trombley just got mad at me because I was seeing Dr. Freeman.”

Chief Justice Earl Warren: Did Trombley fail the bar examinations, too?

Mr. Heywood H. Davis: No, Your Honor.

He passed the bar.

Chief Justice Earl Warren: I thought you said he went over to comfort him after.

Mr. Heywood H. Davis: Well, he went over to comfort him after he took it before the results --

Chief Justice Earl Warren: I see.

Mr. Heywood H. Davis: -- were announced.

Justice Felix Frankfurter: We've all been through that experience.

We've all been through that experience.

Mr. Heywood H. Davis: Yes, sir.

Petitioner testified that he called the Trombley home about a month before the Freeman hearing, that he did so as a friendly gesture because he had heard that Irene, the housekeeper in their home, was going to testify against Dr. Freeman at his hearing, that Mrs. Trombley had once told petitioner that they, the Trombleys, couldn't stand all this gossip about Dr. Freeman and that he just called them to tell them something he didn't know they knew.

Petitioner denied that he used any words such as “truth-telling mood” and stated that there was no intimidation involved in the phone call.

With both of the Trombleys yelling at him, however, and Mr. Trombley accusing him of attempting to intimidate a witness, petitioner testified that he said “well, if you want to get together with me and talk about this or with me and Dr. Freeman at a later date, I'll do so.”

Petitioner testified that he did not talk with Dr. Freeman or anyone about making the call to the Trombleys, that he never even told Dr. Freeman that he did so and that he never talked to Irene about anything connected with the Freeman hearing.

In February of 1961, the Board of Law Examiners filed their opinion that petitioner was not a person of good moral character and should not be allowed to take a second bar examination.

One of the five Board members dissented.

The Board threw out the attorney representation charge, finding that there was no substantial evidence to support it.

On the witness intimidation charge, however, the Board found against the petitioner.

The Board said, I am referring to page 17 of petitioner's brief, based on the record of the hearing before the Board, therefore, it is the finding of the Board that applicant, Michael Zipkin did attempt to influence the testimony of Irene Werhey by approaching Mr. and Mrs. Trombley with the suggestions as testified to by Trombley, that applicant, Michael Zipkin, was not telling the truth in his testimony before the Board with regard to what he said in the telephone conversation to Mr. and Mrs. Trombley and as to whether or not he knew when he telephoned them that Mrs. Werhey was going to testify as to sexual relations with Freeman.

The Board summarized the testimony regarding petitioner's character and reputation and comment, here again on page 18, “even though it might be said that the evidence preponderates in favor of the reputation of the applicant for good character, yet, the general reputation would have to yield in deciding this matter to the specific act and facts with regard to the telephone conversation above set out as the determinative factor.”

Petitioner filed a motion for judicial review in the Missouri Supreme Court urging, among other things, a violation of his constitutional rights in violation of the Fourteenth Amendment, but the Missouri Supreme Court, without oral argument, summarily affirmed the Board's order.

Justice William J. Brennan: Well, what's the usual practice of the Supreme Court of (Inaudible)?

Mr. Heywood H. Davis: As far as I know, Mr. Justice Brennan, this was the first time that a case such as this had come up in Missouri and there was no established practice, and that's why motion for judicial review almost in the nature of a certiorari petition to this Court was filed with the Missouri Supreme Court.

The Board of Law Examiners does recommend to the State Supreme Court their findings, and then the court itself of course has the --

Justice William J. Brennan: But that's the nature of the proceeding, a motion for judicial review.

Mr. Heywood H. Davis: That was the nature of the proceeding in this instant.

Since this case in the Missouri Supreme Court, there has been a new rule adopted which specifically spells out a procedure for review giving a bar applicant a certain period of time to file any motion with the Missouri Supreme Court taking exception to any finding of the Board of Law Examiners.

Justice William J. Brennan: Well, does the new procedure contemplate an independent examination of the record by the Supreme Court?

Mr. Heywood H. Davis: I don't know, Your Honor.

Justice William J. Brennan: Apparently, at least in this occasion, that --

Mr. Heywood H. Davis: Other than that the court, of course, has the final determination and obligation to determine the fitness of applicants for the bar.

Justice William J. Brennan: Apparently, they didn't exercise it in their --

Mr. Heywood H. Davis: In this instance --

Justice William J. Brennan: -- independent discretion.

Mr. Heywood H. Davis: In this instance, other than in a summary order stating that they reviewed the record and the --

Justice William J. Brennan: What was -- what was sent up there?

Mr. Heywood H. Davis: -- exceptions.

Justice William J. Brennan: What was sent up to the court with the motion?

Mr. Heywood H. Davis: The papers?

Justice William J. Brennan: Yes.

I mean, was the record of the transcript of this procedure sent up?

Mr. Heywood H. Davis: The record was sent up and various specific points urged in the motion why the case should be overruled, weight of the evidence, and credibility of the witnesses and that sort of thing, along with the constitutional issue.

Justice William J. Brennan: In any event, you're not raising any question with us as to the adequacy of the review procedure, are you?

Mr. Heywood H. Davis: No.

No, Your Honor.

No, Your Honor.

Justice Felix Frankfurter: What was the proceeding before the Supreme Court?

Mr. Heywood H. Davis: The State Supreme Court?

Justice Felix Frankfurter: Yes.

Mr. Heywood H. Davis: Well --

Justice Felix Frankfurter: Tell us all there was, so far as you know.

Mr. Heywood H. Davis: Well, I know the documents that were filed with the Missouri Supreme Court and the parts of those that relate to the federal constitutional question are contained in the brief -- in the record.

Justice Felix Frankfurter: All done on -- printed?

Is it all printed or --

Mr. Heywood H. Davis: No, it was typewritten.

Justice Felix Frankfurter: Typewritten.

Mr. Heywood H. Davis: It was typewritten.

Justice Felix Frankfurter: What about the brief?

No oral --

Mr. Heywood H. Davis: No brief was ever filed except there, along with this motion for judicial review, there were suggestions in the nature of federal court suggestions which constituted a brief.

No brief --

Justice Felix Frankfurter: But, what was filed was -- was there a lawyer?

Were you in the case?

Mr. Heywood H. Davis: No, I was not in the case at that time.

Justice Felix Frankfurter: Well, whoever represented the petitioner was a lawyer, wasn't there?

Mr. Heywood H. Davis: There was a lawyer at that time, yes.

Justice Felix Frankfurter: Was he restricted as to what he could file?

Mr. Heywood H. Davis: No, not in any way and he filed a brief rather full brief was filed, but no response was ever filed and no argument was ever had.

Justice William J. Brennan: There was no oral argument?

Mr. Heywood H. Davis: No, Your Honor.

Justice William J. Brennan: So, as far it appears, in any event, we don't know whether the Supreme Court of Missouri ever looked at the record or not.

Mr. Heywood H. Davis: Well, they stated in their opinion.

Justice William J. Brennan: They did?

Mr. Heywood H. Davis: They did.

Justice William J. Brennan: I see.

Mr. Heywood H. Davis: That's at the record page 118.

Justice William J. Brennan: Would you mind just reading it?

Mr. Heywood H. Davis: Now, at this day, the court, having considered the transcript, record, and files herein and the motion for judicial review and exceptions from the findings and orders of the State Board of Law Examiners, finds that said order is supported by competent and substantial evidence on the whole record --

Justice William J. Brennan: Well, in that --

Mr. Heywood H. Davis: We, therefore, considered and the judge--

Justice William J. Brennan: Then they did look at the record.

Mr. Heywood H. Davis: Oh!

Yes, yes, they did have the record before them.

Justice Felix Frankfurter: It's like our affirmance of an appeal on the printed document without oral argument, is that right?

Mr. Heywood H. Davis: I would think so.

Justice Felix Frankfurter: Not at all like a denial of a facial error though.

Mr. Heywood H. Davis: Oh!

No, no.

I -- when I did refer to hat, Mr. Justice, I only meant that the motion that was filed seemed to be in the -- by petitioner in the nature of a request for judicial review because there was no question at that time in Missouri.

Justice Felix Frankfurter: (Inaudible) adjudication by the Supreme Court with full power of review, is that right?

Mr. Heywood H. Davis: That is correct.

Petitioner submits that there is no rational justification in the record for the finding of the Missouri Board of Law Examiners.

Justice Hugo L. Black: Is that the sole contention?

Mr. Heywood H. Davis: That's the sole contention.

Justice William J. Brennan: Is this a sort of Thompson-Louisville argument?

Mr. Heywood H. Davis: We have cited that case, Mr. Justice Brennan, but it's more Schware-Konigsberg type of argument.

We don't claim that there is no evidence in the record to support their finding that he's lacking in good moral character.

We do claim that the evidence in the record does not rationally justify the finding of the Board of Law Examiners and rationally justifying, of course, is the language of this Court in both Schware and Konigsberg.

Missouri Supreme Court Rule 8.07, which appears on page 21 of our brief, states in part that in no event will permission be granted to register as a law student or to take the bar examination until an investigation as the moral character has been completed.

Two such investigations were made in this case and petitioner was twice found to be of good moral character.

Thus, at the time the attorney representation charge and the witness intimidation charge were raised against him, he had fulfilled his burden of proof and had established a prima facie case, and the Board never overcame this, the petitioner submits.

Justice Felix Frankfurter: Just set me straight, Mr. Davis.

After this, roughly speaking, certification, the Board action, now under review, followed, is that right?

Mr. Heywood H. Davis: That is correct.

Justice Felix Frankfurter: And how did it get before the Board and -- in the first place, who certified his competence to take the bar examination, the same Board?

Mr. Heywood H. Davis: I would say yes, the same Board.

The actual investigation had been made by a regional --

Justice Felix Frankfurter: But the formal authority was this Board.

Mr. Heywood H. Davis: That's correct.

Justice Felix Frankfurter: And he was then authorized to take the examination.

Mr. Heywood H. Davis: To take the bar exam, and did take it.

Justice Felix Frankfurter: And then, followed this proceeding?

Mr. Heywood H. Davis: That is correct.

Justice Felix Frankfurter: Which, as it were nullified that formal authorization and -- have you told us, if you have I was inattentive, I didn't mean to be.

How was this new proceeding which is now on review here, how did it get going before the Board?

Mr. Heywood H. Davis: Well, a complaint was made.

Justice Felix Frankfurter: Before he got around to taking his bar examination?

Mr. Heywood H. Davis: No, after -- after he took the bar examination and --

Justice Felix Frankfurter: So he did --

Mr. Heywood H. Davis: While the papers-

Justice Felix Frankfurter: -- he acted on his authorization.

He took his bar examination and then there was a complaint contesting his moral --

Mr. Heywood H. Davis: Moral char --

Justice Felix Frankfurter: -- fitness to be admitted to the bar, is that right?

Mr. Heywood H. Davis: That's correct.

Justice Felix Frankfurter: That's the order of events?

Mr. Heywood H. Davis: That's correct.

Justice Felix Frankfurter: Alright.

And, you indicated that the Board, as an active consciously directed body, didn't go through to find out affirmatively what his moral character.

Somebody -- somebody wrote a letter to somebody the way you want to get to --

Mr. Heywood H. Davis: Well, there were actual investigations made by --

Justice Felix Frankfurter: Yes, I know, but it wasn't the Board in pauperis, was it?

Mr. Heywood H. Davis: No.

Justice Felix Frankfurter: And, when a cer -- a complaint like this is made and the Board sat as roughly speaking as adjudicating body.

Mr. Heywood H. Davis: That's correct.

Justice John M. Harlan: Well, if you flunk the first time, you have to get permission to take the bar exams again, do you?

Mr. Heywood H. Davis: You may take it a second time without any additional fee, as I understand it, and, as a routine matter, this is frequently done.

However, at the time they advised petitioner of the results of the bar exam, they told him that if he did want to take a second examination, they would have to have a further inquiry as to his good moral character, and that was the hearing in this case.

Justice John M. Harlan: That the -- but you can't take the -- if you flunk once, you can't take it automatically.

Mr. Heywood H. Davis: Yes, you can.

Justice John M. Harlan: Oh!

Can you?

Mr. Heywood H. Davis: The following -- following session.

Justice John M. Harlan: Then I don't understand how the committee gets anything.

Mr. Heywood H. Davis: Well, because they --

Justice John M. Harlan: The Character Committee Examination normally is after you've passed your bar exam.

Mr. Heywood H. Davis: Not in Missouri, Mr. Justice.

Justice John M. Harlan: Then when does that -- at what stage is the Character Committee?

Mr. Heywood H. Davis: Prior to the time you were allowed to take the bar examination.

Justice John M. Harlan: Oh!

Initially?

Mr. Heywood H. Davis: And, the rules of the Missouri Court specifically provide that in no event will you be allowed to take an examination until the moral character investigation has been completed.

Justice John M. Harlan: I see.

Justice Felix Frankfurter: The second time or even the first time?

Justice John M. Harlan: Either time.

Justice Felix Frankfurter: Initially, you can't take a bar examination in Missouri without being certified to be of good moral character.

Mr. Heywood H. Davis: That's correct.

Justice Felix Frankfurter: And, if you pass it, then you're admitted and you don't have to go through another --

Mr. Heywood H. Davis: That's right.

Justice Felix Frankfurter: -- moral character examination as those who us who were admitted to the Bar of New York had to go through.

Mr. Heywood H. Davis: That's correct.

Justice Felix Frankfurter: Is that right?

Mr. Heywood H. Davis: That's right.

Chief Justice Earl Warren: Does it appear -- does it appear who made that complaint?

Is it withstanding the witnesses in this --

Mr. Heywood H. Davis: That does not appear in the record.

The efforts were made to find out which do appear in the record but --

Justice William J. Brennan: Well, Trombley told some other lawyer, didn't he in Thompson?

Mr. Heywood H. Davis: He reported that to -- he reported the telephone incident to the lawyer for the Board of Healing Arts in charge of the Dr. Freeman hearing.

Chief Justice Earl Warren: We'll recess now Mr. --

Print this transcript Transcript: 

Argument of Heywood H. Davis

Justice Hugo L. Black: (Inaudible)

Mr. Heywood H. Davis: Mr. Justice Black, with the Court's permission, I'll reserve the minute or so of my time left.

Argument of Richmond C. Coburn

Mr. Richmond C. Coburn: Mr. Justice Black, and if it please the Court.

Before I state the position of the respondent in this case, it might be well for me to dispose of one or two matters that were -- that came before the Court in the argument of the petitioner on yesterday.

In the first place, I think I should say that the dean of our law school out in Missouri, although he was called as a witness to testify before this hearing, was not a patient of Dr. Freeman.

There was one other that --

Unknown Speaker: (Inaudible)

Mr. Richmond C. Coburn: That's right, Mr. Justice.

That's correct but I want it abundantly understood because he is a highly regarded man in our state.

One other thing that I think I might touch on very briefly is this.

Some question was raised on yesterday as to how it was that this matter came to the attention of the Bar Examining Board.

The record -- at page 66 of the record, if the Court is interested, shows that a Mr. Alexander, who was a member of the Boone County, that's Columbia, Missouri Bar, represented the State Board of Healing Arts, as it's called there, in this proceeding against Dr. Freeman.

He took the precaution of calling Mr. Trombley, who is a young member of the bar in Boone County, knowing that Trombley represented two of the witnesses who were to appear before this Board including Mrs. Werheyki who is prominently mentioned in this record, saying that if anything was done with reference to these witnesses, he would like to know about it and Trombley promised him to do so, and Trombley testified that there were some things done but the only thing that had any relationship to the petitioner was the matter of Mrs. Werheyki and it was in that way that, after Trombley had received his telephone call, he reported the matter to Mr. Alexander and, apparently, that's the way it came before the State Board of Bar Examiners.

I would like to say, if the Court please, that it's the respondent's position in this case that this record presents two issues of fact.

Justice William J. Brennan: Excuse me, Mr. Coburn.

Mr. Richmond C. Coburn: Yes?

Justice William J. Brennan: May I ask, how is the Board appointed?

Is this -- do you have any -- the Integrated Bar, don't you?

Mr. Richmond C. Coburn: Yes, we do, Mr. Justice, and the Board is appointed by the Supreme Court of Missouri.

Justice William J. Brennan: For terms of office?

Mr. Richmond C. Coburn: Yes, for four years.

Justice William J. Brennan: How many members?

Mr. Richmond C. Coburn: Members of the bar?

Justice William J. Brennan: How many members of the Board?

Mr. Richmond C. Coburn: Excuse me, yes, there are five, as I recall.

Justice William J. Brennan: Five, from various parts of the state under law?

Mr. Richmond C. Coburn: Yes, they are.

If I may say so, they are distinguished members of the bar.

It is the respondent's position in this case that this record presents two issues of fact.

One, whether the petitioner, Michael Zipkin, tried to intimidate a witness in the Dr. Freeman hearing and, second, whether the petitioner, himself, was a truthful witness when he appeared before the State Board of Bar Examiners.

Both of these questions of fact were resolved against the petitioner by the State Board at their hearings.

Justice William J. Brennan: Can you tell us anything, Mr. Coburn, the scope of review by the Supreme Court?

Mr. Richmond C. Coburn: Mr. Justice, the --

Justice William J. Brennan: -- of the findings at that time?

Mr. Richmond C. Coburn: At the time that this matter occurred, this hearing was held, the scope of the review was none too well-defined so far as the rule of the Supreme Court was concerned that governed the proceeding, but I can tell you what happened.

What happened was that this Board, not acting as a prosecuting body, but simply as a Board, had the power to subpoena witnesses, did subpoena witnesses including the -- well, all their six witnesses in all.

They came and testified.

Some were favorable to the petitioner, some were unfavorable to him.

They made their finding which is reported in the record beginning at page 93, as I recall it and then, this finding was filed with the Supreme Court of Missouri.

I think it is apparent that the Supreme Court treated the Board as a trial court.

The Supreme -- in the Supreme Court, a motion for review was filed by Mr. Zipkin's then attorney because the findings of the Board were contrary to him found that he had not shown that he was of good moral character.

The Supreme Court of Missouri had before it, when it made its determination and entered its judgment, the record -- the transcript of the record below, the motion for review, and the suggestions that were filed in support of the motion which were in the form and nature of a brief.

They did not hear the witnesses, but they had the transcript of the evidence.

They had a brief in support of Mr. Zipkin's position and under those circumstances the Supreme Court entered a judgment affirming the action of the Examining Board.

Justice William J. Brennan: Well, would it be fair to say that if treated as the lower court, then --

Mr. Richmond C. Coburn: Yes.

Justice William J. Brennan: -- then I -- that review would be on the part of the Supreme Court, only an examination of the transcript will see if there is evidence -- substantial evidence or something to support the findings?

Mr. Richmond C. Coburn: Yes, the Supreme Court of Missouri treated it that way.

The Supreme Court held that the findings of the Bar Board were supported by competent and substantial evidence so that, really, it was as if this were an equity case that came up from the trial court to the Supreme Court of Missouri and was tried de novo but, of course, all that was required was substantial evidence to support the findings below.

Justice William J. Brennan: Under the new rule, has this changed?

Mr. Richmond C. Coburn: No, as I recall it, it's substantially the same, but they have laid out the ground rules of procedure a little more carefully.

Justice Potter Stewart: You said that up until this case it -- the ground rules of procedure had not been very well delineated.

Does this mean that there had been no -- no case like this before this one?

Mr. Richmond C. Coburn: Yes, yes Mr. Justice.

There had been one case of which I have knowledge that had been tried by the Board and where the Board had found that the petitioner was not -- had not established that he was of good moral character and where he filed a review with the Supreme Court of Missouri and where the Supreme Court upheld the Bar Board and he filed a petition for writ of certiorari in this Court but the petition was denied.

May I then return to these two factual issues and --

Justice John M. Harlan: May I ask you one question?

Mr. Richmond C. Coburn: Yes, sir, Mr. Justice Harlan.

Justice John M. Harlan: Under your rule, does this preclude this young man from reapplying at some stage for permission to take the bar examination?

Mr. Richmond C. Coburn: No, it does not.

As to this first issue of fact, as to whether the petitioner intimidated a witness in the Freeman hearing as the Board found, I think it is important for me to briefly restate the background that existed at the time that this telephone call was made by the petitioner to Mr. Trombley.

The petitioner was a patient of Dr. Freeman's and apparently a good personal friend of his.

Irene Werheyki, who is mentioned prominently in this record, was a woman who was also a patient of Dr. Freeman's, a charity patient.

She had -- I think it is clear she was a rather pitiable figure.

She had been married.

She was divorced.

After her divorce, a baby was born.

She was without means.

It was under those circumstances that the Trombleys took her into their home and she lived in a basement-apartment with her baby, I presume, and worked in -- for the Trombleys.

Her life was almost wholly dependent upon the Trombleys.

The testimony shows, according to Mr. Trombley now, that this woman, this Mrs. Werheyki, came to him in a distressed state of mind saying that Dr. Freeman's hearing was shortly forthcoming and that she understood that she was going to have to testify in the case and what should she do?

Would the lawyers asked her questions and so forth?

Justice Potter Stewart: The -- Dr. Freeman's hearing was to be before a Board called the, what?

The --

Mr. Richmond C. Coburn: State Board of Healing Arts as they call it.

Justice Potter Stewart: State Board of Healing Arts?

Mr. Richmond C. Coburn: It's really the Med -- State Medical Board.

Justice Potter Stewart: Did that -- does that Board have subpoena power?

Mr. Richmond C. Coburn: I'm sure it did, I'm sure it did.

Justice Potter Stewart: So that -- because as the record indicates that there was some -- that Mrs. Trom -- that Mrs. Werheyki, or whatever her name was, had some choice as to whether or not to appear and testify.

Mr. Richmond C. Coburn: Well, I think she could've been subpoenaed.

I suppose if she wanted to exercise her rights under the Fifth Amendment, she could have, if her testimony was of that character, but otherwise I assume she was subject to being required to testify.

Justice Potter Stewart: It did -- it does have subpoena power.

Mr. Richmond C. Coburn: I'm sure it does, Mr. Justice.

Under those circumstances, this woman came to young, Mr. Trombley who was a member of the bar, not long but was a member of the bar, and asked his advice as to what she should do.

He said “tell the truth,” and so she then went back to Dr. Freeman and said that she understood she was going to be called as a witness in his hearing and she was going to tell the truth.

Dr. Freeman said to her that he thought that would be unwise, and here is a significant shred of evidence.

He said “if you do testify, you may be put out of the house where you are living.”

This is what Mr. Trombley said that Mrs. Werheyki told him that “you may be put out of the Trombley house that your reputation will be ruined and other derogatory things will happen to you” and so, she came back and reported that to Mr. Trombley and his wife.

It was in that context or atmosphere that, about two days later, this telephone call was received from Mr. Zipkin, the petitioner.

Trombley testified and it was his testimony that was believed by the Bar Board, Trombley testified that this telephone call came in.

They had two extensions in the house.

His wife first answered the phone and then he went over and picked up the telephone and it was Zipkin on the other end of the phone and he said “this is Michael Zipkin.

I am helping Dr. Freeman with his case and everything is getting along alright, except that we have one problem.

Irene Werheyki is in a truth-telling mood and I think that you and Mrs. Trombley and Dr. Freeman and I had better meet and discuss this subject to see what can be done about Irene.”

It's significant, too, that not just Mr. Trombley who was a young lawyer, and I think might have some special sensibilities about what should be done under those circumstances, he reacted violently, but so did his wife who was not a lawyer at all.

She said “we're not afraid of you, Zipkin.”

He said “are you trying to intimidate a witness?”

And, under those circumstances, the conversation was broken off so far as Trombleys' version of this thing is concerned.

Zipkin --

Justice Felix Frankfurter: (Inaudible)

Mr. Richmond C. Coburn: I think --

Justice Felix Frankfurter: (Inaudible)

Mr. Richmond C. Coburn: I think that's a fair statement of the thing, Mr. Justice.

Justice Felix Frankfurter: (Inaudible)

Mr. Richmond C. Coburn: No, but I think that's -- I think --

Justice Felix Frankfurter: (Inaudible)

Mr. Richmond C. Coburn: I think that's fair.

Zipkin told a different story entirely from this.

His version of the thing was that he did not call up to intimidate a witness.

He denied that he said that Irene was in a truth-telling mood in this conversation.

What he said that he said over the telephone was this.

That he called up saying that he had heard that Irene was going to charge Dr. Freeman in his hearing with rape or sexual relations with him and that he thought that the Trombleys should know that so they would not become involved in the mess that was sure to follow because she was living in their house.

That was what he said on one occasion, but when pressed further by the Board as to what he said over the telephone, he changed the story and said later “well, I called up and said that I had heard that Irene was going to testify in the Freeman hearing and that, if she does, you will become involved in the matter because she is living in your home.”

He denied that he was trying to intimidate a witness when he called but it is significant I think, too, that when Mr. Trombley and his wife both reacted violently to this telephone call, he said he didn't just stop, having given them the warning that he said he called up to give them, but he said “if you want to talk with me or with Dr. Freeman about this matter, if you will call me, I will tell you what I heard.”

Those, if the Court please, are the facts.

With reference to this issue of whether Mr. Zipkin, the petitioner, tried to intimidate a witness in this case.

Justice Felix Frankfurter: (Inaudible)

Mr. Richmond C. Coburn: Not at all, not at all.

Justice Felix Frankfurter: (Inaudible)

Mr. Richmond C. Coburn: On page 71, if the Court please, there is the first answer that Mr. Zipkin gave with reference to this telephone conversation.

It is a long answer.

It covers all of that page but it is an interesting answer and one that's important to the Court, I think.

You will notice there that on three different occasions, this was the first time he had a chance to tell his story, three different times in that long answer, he said that he had heard that Irene Werheyki was going to accuse Dr. Freeman of rape or sexual immorality and that he was calling in order to warn the Trombleys of this so that they won't become so involved.

If the Court will indulge me the privilege of reading very briefly from one of those statements, because I think it is in sharp conflict with his testimony later on.

At one point in this long answer he said “I said --

Justice William O. Douglas: Where are you reading, Mr. Coburn?

Mr. Richmond C. Coburn: Page 71, Mr. Justice, towards the bottom of the page, about the bottom-third.

“I said and I just heard Irene Werheyki is going to accuse Dr. Freeman of rape and I wanted to tell you about this because if Irene gets into a mess, she is just liable to drag you into it.

She lives with you” and so on.

Now, if the Court please, if you will turn to page 87 of the record where the petitioner was under cross -- under examination by another member of the Board and where he now tells another version of this telephone conversation.

On page 87, about a-third of the way down, question, “alright, and you were calling the Trombleys, as I understand it, to inform them that Irene was going to testify to rape and sexual intercourse, although I also understand -- understood you to say you were confident in your own mind that Irene would do -- wouldn't do anything like that.”

Answer, “No.

I called the Trombleys simply to tell them I heard Irene was going to testify.

I didn't know what to” and then, again, he stuck by this from now on, on 89 -- page 89, he -- they say here, “do you remember further -- the question, “do you remember further testifying that knowledge came to you that Irene Werheyki was going to testify that she was involved in some rape and sexual immorality” and the witness then started to interrupt in the questioner, the board member said “wait a minute.

Did you testify to that or not?”

“Yes.”

Question, “didn't you just get through telling Mr. Syler, another board member, that you didn't know what she was going to testify to before you called Trombley?

Which is right, did you or didn't you?”

Answer, “Here is what is right.

I called up the Trombleys and informed them of exactly what I heard.”

“What did you hear?”

Answer, “That Irene was going to testify against Freeman at his hearing.

I didn't hear what about or what the charges were, I had no idea.”

And this last, and then I will not burden you with further references to the record, one of the members of the Board, a Mr. Oliver, dissented from the finding of the Board but I think it is clear from the record that on the very concluding page of the examination of the petitioner, that Mr. Oliver thought that he had not testified candidly before the Board.

If Your Honors would turn to page 92 of the record, the very last thing that was asked the petitioner and this by Mr. Oliver.

In the middle of the page and in the middle of his question, which is long, “I want you to reflect on what you had heard and what you actually told them as to your understanding to what Irene was going to testify to.”

And then, answer, “I only told the Trombleys one thing,” and omitting a little, “I heard that Irene Werheyki -- I heard a rumor that Irene Werheyki was going to testify at this hearing of Dr. Freeman's.”

“So that I understand your testimony, it is that you did not tell them -- tell that you had also heard that she was going to testify that she had been raped by Dr. Freeman or words to that effect?”

“No sir.”

And then, at the very end of the hearing, this comment by Commissioner Oliver, “well, I just wanted to be sure that you reflected on that because I am not quite sure the testimony is consistent all the way through” and so, if the Court please, it is our position here that there are two issues of fact.

This Board had the power and the jurisdiction to determine facts.

It resolved both those facts against the petitioner, namely that he had testified falsely with reference to this telephone conversation and, second, that he had undertaken or attempted to intimidate a witness in the Freeman hearing.

As a result of which, the Board concluded that the petitioner had not discharged his burden of proof to establish that he was of good moral character.

Now, the petitioner here has relied in its -- in his brief heavily upon the Schware and the First Konigsberg cases by this Court of course.

May I say that those cases are in no ways applicable to the present case?

In the first place, this is not a First Amendment or Bill of Rights case at all.

It is simply a question of whether this man had due process of law.

Is there any rational basis, in other words, for the finding of fact that was made by the Board in Missouri?

Furthermore, these two cases, Schware and Konigsberg, are as different on the facts these cases could be.

Justice Hugo L. Black: May I ask you if you would mind referring --

Mr. Richmond C. Coburn: Yes?

Justice Hugo L. Black: -- where are the precise findings to which you refer?

Mr. Richmond C. Coburn: I think on 90 -- page 98, Mr. Justice Black, you will find the findings of the -- of the Bar Board.

Justice Hugo L. Black: On the pages, I wondered if there's one -- you pin pointed two points.

Mr. Richmond C. Coburn: Yes.

Justice Hugo L. Black: Are they in concise form or do you have to read it aside?

Mr. Richmond C. Coburn: Well, they are in the -- they are in the findings.

I do not know that they are in quite that concise a form, but if you --

Justice Hugo L. Black: Don't bother about --

Mr. Richmond C. Coburn: -- the findings are long but --

Justice Hugo L. Black: Don't bother about it.

Mr. Richmond C. Coburn: That's alright.

Justice Hugo L. Black: I'm referring to --

Mr. Richmond C. Coburn: Yes, you find, I think, that they are both there clearly in the Court -- in the Board's findings.

Justice William J. Brennan: Well, Mr. Coburn, isn't that at page 98, aren't the two findings expressed just as such in that paragraph beginning based on the record?

Mr. Richmond C. Coburn: Well, that's the paragraph that I had in mind.

They find there that the applicant did attempt to influence the testimony of Mrs. Werheyki and --

Justice William J. Brennan: That he was not telling the truth.

Mr. Richmond C. Coburn: And that he was not telling the truth, yes.

Justice William J. Brennan: They placed that as finding.

Mr. Richmond C. Coburn: Yes.

Justice William J. Brennan: Due finding of the court.

Mr. Richmond C. Coburn: Yes, I -- they -- I think you certainly can say that they're in the paragraph, although they may not be quite as concise as they might be.

But, if I may return to just a brief reference to the Schware and Konigsberg cases, they are not the same as this case at all because this is not a First Amendment or Bill of Rights case.

The testimony in both of those cases with reference to the moral -- good moral character of the man who is applying for a particular bar examination was infinitely stronger than it was in this case.

There was no question in either of those cases about the petitioner's truthfulness when he appeared before the Board.

In fact, the Court commented Schware upon his candid -- candidness in revealing the fact that, many years before he had been a member of the Communist Party, there was no issue of fact before the local Board there with reference to some matter of substantial importance and, furthermore and finally, the testimony there related to a situation 15 years before whereas, the testimony here related to a matter that was quite current and, in fact, his appearance -- the petitioner's appearance before the Board and whether he told the truth was a matter of immediate concern to the Board.

It happened in their very presence.

And so if the Court please, it is the respondent's position that this petitioner has received due process of law.

He received a full hearing at which he was represented by counsel, given every opportunity to bring in any witnesses that he had.

All witnesses were heard patiently and, finally, at the end of the hearing, certain com -- certain conclusions of fact were made by the Board, on the basis of which, they entered a judgment that these are -- they found, rather, that this man had not established that he was of good moral character.

I think the judgment of the Supreme Court of Missouri should be affirmed.

Justice Felix Frankfurter: (Inaudible)

Mr. Richmond C. Coburn: Well, I didn't mention that.

At least --

Justice Felix Frankfurter: (Inaudible)

Mr. Richmond C. Coburn: No.

I'm glad you asked that question, Mr. Justice.

I didn't mention it.

It did not occur to me as being a very important matter, but perhaps it will strike some members of the Court otherwise.

My feeling with reference to that is this, that the mere fact that the Board found that in an issue of fact with reference to whether he held himself out to be a lawyer in this other matter, the mere fact that the Board there found in favor of the petitioner, but found in another issue of fact with reference to intimidating a witness against him is by no means inconsistent and all that that illustrates really, if the Court please, is this.

That a fact finding body whether it'd be a court or a board, such as this, that can see the witnesses, see their demeanor on the stand, how they react to questions that are put to them, has an immense advantage.

Justice William J. Brennan: Well, excuse me Mr. Coburn.

I am right, am I not, that there were other witnesses on the business of representing himself with an attorney who said that he did not.

Mr. Richmond C. Coburn: That's right.

Justice William J. Brennan: So that, this is -- even though there was evidence in addition to his testimony --

Mr. Richmond C. Coburn: Yes.

Justice William J. Brennan: -- on that issue as there was not on this other one.

Mr. Richmond C. Coburn: That's very true.

That's true, Mr. Justice, and one other thing, and I think this is -- this, to me, would be important if I were sitting on this Board, with reference to his -- representing himself to be a lawyer, he did not testify untruthfully with reference to that at all.

His position was perfectly consistent all the way through.

He denied holding himself out as a lawyer.

All he said was “well, I'm a law student” or “I know more about the law than you do,” but with reference to what this telephone conversation, where he was found to have tried to intimidate a witness, his testimony is strikingly inconsistent.

And so, the Board, I think, was quite authorized in deciding against him on that issue and for him on the other issue of fact.

Thank you very much.

Rebuttal of Heywood H. Davis

Mr. Heywood H. Davis: Mr. Justice Black, may it please the Court.

The matter of this inconsistency, the only real inconsistency that appears on this record, and it's an inconsistency that we have admitted in our brief, is that petitioner first testified that he said “I heard that Irene was going to testify against Dr. Freeman about rape or sexual relations,” whereas, he later said “I only heard that she was going to testify against Dr. Freeman.”

Now, petitioner submits that this inconsistency as to what he heard some five months prior to the time of this Board hearing, considering particularly all the rumors and talk that was going on about this general matter is not a consistency that warrants the conclusion of the Board of Bar Examiners that he was not telling the truth or is of unfit character

Justice Hugo L. Black: Can I ask you one question?

Suppose that's correct, what can you say about the Board's authority to find (Inaudible) evidence to find that he has said what he did to his witness (Inaudible) not that exact language, but what he said this.

Suppose -- suppose he had at all made a statement that the truth-telling need to do something about something to that effect.

What would you say about that without regard if the Board found that he is fit?

Mr. Heywood H. Davis: The petitioner submits that even assuming that Trombley's version of the telephone call is correct, that even assuming that what was said on the telephone that that doesn't form a basis -- a substantial basis from which you can draw a legal conclusion that that constituted an attempt to intimidate a witness --

Justice Hugo L. Black: Suppose if it didn't constitute an attempt to intimidate a witness, but did show reference (Inaudible)

Mr. Heywood H. Davis: We say that even accepting Trombley's version of the phone call and wholly apart from the fact that petitioner testified to the contrary that that is not a basis from which you can draw the conclusion that that did constitute such an attempt.

The 14 lines of testimony that I read yesterday in which Mr. Coburn referred to as to this one telephone conversation, one single controverted telephone conversation.