BAIRD v. STATE BAR OF ARIZONA

I think at the outset it might be appropriate and go serviceable to the Court, if we would first put in proper relationship, proper context the record in the court below.

I would say at the outset that the position of the respondent is not one of an advocate either way so far as this question of finality is concerned.

As we review our responsibility here to simply to bring to the Court the facts with respect to this question and then proceed on to as best we can explain the other proceedings in the Court below.

I think the best way to put the record in proper relationship to the actual facts is perhaps to begin with the response which was filed by the committee in the Supreme Court of the State of Arizona.

Now, it is my understanding from reading rules of this Court that papers that are certified by the clerk of the lower court are part of the record and subject to being considered in this case.

I say that for this reason that the appendix which is part of the petitioners filing with this Court excerpts from the committee's response to our Supreme Court, certain portions of that response, necessarily when this matter was brought to the attention of the committee, the full impact, the full exposure of this case in this Court, was not readily understood, and accordingly we did not enlarge upon the printed portions of the response of the Arizona committee on examinations to the Arizona Supreme Court.

The original, however, is in the record and I would like briefly to refer to that with the Court's permission.

I say that for this reason that we have indicated our position as one of simply here are the facts we made us on the citing of the case now as any other time if in fact this Court has jurisdiction.

The Court will recall that it has been brought to the Court's attention that the proceeding in the Arizona Supreme Court was initiated by a petition for an order to show cause, directed to the Committee on Examinations and Admissions.

And referring to the appendix before I move on, the prayer of that petition read as follows, the Arizona Supreme Court, “Wherefore your petitioners pray that this Court make another its order requiring the Committee on Examinations and Admissions of the Supreme Court of the State of Arizona be in appear before this Court of at to date at a time certain then an order to show cause, if any it may have, quite petitioner should not be forth with recommended for admission by the State to the State Bar or in the alternative show cause like petitioner's applications should not be processed by the committee without requiring the petitioner, any further answer -- of petitioner any further answer to the question 27 of applicant's questionnaire and affidavit.”

The Court would recall this is a question which asked, “Have you ever been a member of the Communist Party or any organizations which supports the overthrowing of the Government of the United States by force and violence?”

The opening portion on the memorandum which the committee filed with the Arizona Supreme Court reads as follows: “Applicant in a main treats the posture of our application to the committee as rejected by the committee, and from this false premise enlarges upon a proposed constitutional rights of the applicant.

Nothing could be chored from the true fact.”

Justice John M. Harlan: Are you reading from the --

Mr. Mark Wilmer: I'm reading Your Honor and then I'm sorry this is not in the printed appendix, Your Honor.

It is in the original of the respond certified by the clerk of the Arizona Supreme Court to this Court.

Justice John M. Harlan: And why isn't this on the appendix?

Mr. Mark Wilmer: Well, Your Honor, I must say it frankly, I didn't suppose it would be needed at the time when I read the appendix as certified.

In other words, we did not have a complete view of the flow of the case in this Court as to what or would not be material.

Because I read your rules and I assume I am correct.

Even though it is not printed in the appendix, nonetheless say for this part of the certified record, it may be referred to before this Court.

Of course if that is not true, I should not do so.

Justice John M. Harlan: Is the paper actually physically in the clerk's office?

Mr. Mark Wilmer: It should be, Your Honor.

Justice John M. Harlan: Oh, thank you.

Mr. Mark Wilmer: This would be the responds of the committee to the petitioner's order to show cause and may I please the Court in this Arizona Supreme Court.

Justice John M. Harlan: (Voice Overlap) I'm reading that again then since we have all have the cause.

Mr. Mark Wilmer: Yes Your Honor, I'm sure.

I'm sorry I have finally realized the moment (Inaudible).

That is if it would have been a better applicant in the main treats the posture of our application to the committee as rejected by the committee and from this fault's premise enlarges upon the supposed in constitutional rights of the applicant.

Nothing could be further from the true fact as this appears from the letter of April 24, 1968 attached to the affidavit of Robert A. Gellin where the Court will recall this chief counsel for a petitioner.

The committee has not rejected the application of Sarah Baird and does not intend to do so, unless and until further facts appear which would warrant this rejection.

I would say in this context, may it please the Court, that this letter of Robert -- to Mr. Robert A. Gellin and antedated the application of the petitioner for an order to show cause to the Arizona Supreme Court.

In other words, this was the discussion of counsel prior to the initiation of this proceeding.

Justice John M. Harlan: Could I ask you a question Mr. Wilmer?

Mr. Mark Wilmer: Yes, Your Honor.

Justice John M. Harlan: Assuming this litigation never been brought and Mrs. Baird simply persisted in her view that she didn't have to answer the question.

What would have happen to her application to the bar, her admission to the bar?

Mr. Mark Wilmer: Her application, Your Honor, which still as it is today sitting on our shelves waiting for her to either move her mandamuses to complete the processing of it or something else would have happen.

In our position of that may I say this briefly Your Honor.

The Committee on Examinations and Admissions is a criterion hand made of the Arizona Supreme Court.

Justice John M. Harlan: Yes.

Mr. Mark Wilmer: We have no authority other than that which the Court gives us and I might say if it should become of consequence, the entire rules of the Arizona Supreme Court that are in volume I believe it is 17 of West Publishing Companies of Arizona revised statues.

They govern, they limit, they set to the extent of our authority.

We have no inherent authority or any kind, the rights other than oath givens by the rules.

Therefore, when the Court says to us, ask these questions and they're set out verbatim and this is one of them.

Get the answers from them and then you proceed to certify to this Court your opinion.

We have no choice as far as we're concerned, we are stymied.

We cannot reject it much more as we could if we want to be arbitrary, perhaps we should.

I don't know but the facts are that in less and until that question is answered or someone tells us that we most do something else that case with that matter we'll say it as it is.

Justice John M. Harlan: In other origin, is it fair to say that in practical effect as far as her position is concern, you're continuing to sit down on the hypothetical premises that no litigation had been brought here will be the equivalent if you're saying, “Well you're required to answer this question, since you won't cooperate with the committee, we won't admit you in to the bar.

Is that accurate?

Mr. Mark Wilmer: Only to this extents, Your Honor.

The committee has no authority one way or the other to admit or reject anyone.

We merely make a recommendation to the Arizona Supreme Court does the admission, does the rejection.

I would say this if it may please the Court that Justice Harlan by interaction between the rule and the committee's action for practical purposes, I would conceive that Mrs. Baird is for the moment at least effectively stymied.

Now, whether she should bring a mandamus and in that faction call upon the Arizona Supreme Court to make an effective ruling that is not automated within our providence.

I would simply say that as are the moment at least, the Arizona Supreme Court has been told by the committee.

We haven't made our decision.

We are unable to make a decision and therefore we submit the matters as it is and the Court simply said, “Well we deny the petition, you should complete due process in this petition.”

Now, whether that amounts to finality or not within the rule of this Court, I don't know, I express the opinion as to it, I simply bring it to the Court's attention.

I might say though for the purpose of my next statement to the Court that this letter of April 24, 1968 which antedated the beginning of this proceeding to Mr. Allen as chief counsel for the petitioner, I believe has some of validity and some value in determining what in effect, what in fact I should say is the actual position of the committee in the court below and the committee here.

This letter said, I also believe, that Mrs. Baird should realize that even though she answered the question, “Did she had at one time been communist or had had otherwise been associated with the organizations not regarded as friendly to the United States Government?”

This would not necessarily cause us to reject her application.

We would undoubtly want to ask you some questions as to her present beliefs and as to the other matters which would bear upon the effect of such membership would have are their qualification to practice law.

The committee is aware that under presence of Supreme Court decisions, mere membership in an organization is not sufficient necessarily to disqualify rank and positions of responsibility and this would be the added through the committee in this matter.

Now, I say that for this position for this reason if it please the Court.

We have had here what I would term some rather fancy steps down the sidelines, so to speak, of what words mean.

I believe that as we proceed, we'll find the committee made it an unequivocally and plainly apparent to Mrs. Baird.

We were not concern with what her beliefs were such.

We are not concerned with looking inside her heart to see what she believe or didn't believe in.

We were concerned with finding out did she have the qualification which should make her a lawyer, which would justify us in certifying to the Arizona Supreme Court that in fact she would be a lawyer that the Court would be proud of having admitted.

Now, a fair reading, I believe if it please the Court of the committee's a letter to Mr. Allen.

The Committee's response to the Arizona Supreme Court have our response here indicates simply one thing whether we use the word "belief" or whether we use the word "view"1 or whatever word we use.

We are concerned with one thing.

I heard yesterday the questioned ask if Mr. Baird would prefer the question he presented here whether the record he's made in the court below or here.

And I believe he said here.

I have to confess surprise.

I wrote them both and I really didn't think I was saying anything different one time than the other.

I thought we were saying to the court below and the thought we're saying to this Court that if Mrs. Baird believes in the sense that she would actively advocate and assist and advance the overthrow of the Government of the United States and the States of Arizona by force and violence, we want no pardon nor will we recommend her for admission to our Arizona Supreme Court unless and until we are told to do so by some higher authority.

Justice Thurgood Marshall: Mr. Wilmer.

Mr. Mark Wilmer: Yes, Your Honor.

Justice Thurgood Marshall: The statement in your brief, you want to know whether not Sara Baird is only if she is found to actively believe.

Mr. Mark Wilmer: That is right.

Justice Thurgood Marshall: What that meant?

Mr. Mark Wilmer: Below?

Your Honor, I meant by that that she was prepared to go out and walk up and down the streets and take other step necessary to advance.

Justice Thurgood Marshall: Well, let's leave it if she's willing to walk up and down the streets.

Mr. Mark Wilmer: Pardon, Your Honor.

Justice Thurgood Marshall: Well, let's take the first one.

Suppose she is willing to walk up and down the street.

Mr. Mark Wilmer: Advocating the Government -- overthrow the Government by force and violence?

Justice Thurgood Marshall: Yes.

Mr. Mark Wilmer: I would say if it please the Court that number one that that would contravene the Canon of Ethics, which said you shall do nothing to bring at disrepute the profession of the law or the Court.

Therefore, I would say that if Mrs. Baird said, I propose to walk up and down the streets out for -- I'm admitted as a lawyer and proclaiming to the world that I a lawyer believed we should blow up the capital, assassinate public officials and otherwise change that form of this Government by force we want no pardon of her unless we're told we must let her in.

Justice Thurgood Marshall: Well, I supposed he catch up at a sign which says I don't like Colorado.

Mr. Mark Wilmer: I don't like which one?

Justice Thurgood Marshall: Colorado or the United States.

Mr. Mark Wilmer: I would have no problem with that at all.

I think that's her privilege.

That's her privilege.

Justice Thurgood Marshall: Where is the line you're going to get on this?

Mr. Mark Wilmer: The line that I draw Your Honor is when you talk about destruction of this Government by force and violence.

Justice Thurgood Marshall: Believe in it or do it?

Mr. Mark Wilmer: Pardon.

Justice Thurgood Marshall: Just to believe in it?

Mr. Mark Wilmer: The committee's position Your Honor was not just a belief.

Your committee, the committee's position was actively accept and actively advanced that philosophy and that solution.

Justice John M. Harlan: Well, I think you get much of this for saying (Inaudible).

Mr. Mark Wilmer: Yes, certainly.

Justice John M. Harlan: Oh, I see.

Mr. Mark Wilmer: We couldn't care a less what are beliefs are in any field except that which endangers directly upon the validity and the utility of her service as a lawyer as to those matters we are concerned and we're critically concerned.

Now, --

Justice Thurgood Marshall: Does this means that you do some act in addition to believe it?

Mr. Mark Wilmer: I would say your (Voice Overlap) the occasion is right, you would do it, yes and I don't believe that person should be a lawyer.

Justice John M. Harlan: Those first statutes that you're talking about are not incorporated in the question.

Mr. Mark Wilmer: They would have been incorporated in the questions asked.

Justice John M. Harlan: You have to take a position that this is preliminary?

Mr. Mark Wilmer: Yes, Your Honor.

Justice John M. Harlan: Preliminary that needs further investigation.

Mr. Mark Wilmer: Our rules provide Your Honor that in making its investigation, the committee can conduct an informal or formal investigation.

It can interrogate a witness in formally with the understanding that if that interrogation is to be made a part of the decision, it must then to conform or it must go on record but I have tried to say numerous times, we would simply call Mrs. Baird and say, “Look what do you really believe about this?

Do you?

Are you prepared if you're admitted to practice should a crisis arrive that the Government is threaten with violence, are your hands completely free and are you as a citizen completely able to stand behind the forces of government which you firmly uphold when you become a lawyer?

Or that point will you retire and negate the oath which you took?

Justice John M. Harlan: Could I ask you another question?

Mr. Mark Wilmer: Sure, Your Honor.

Justice John M. Harlan: How long has this questioned in the present form been part of the process and requirement for admission?

Mr. Mark Wilmer: Your Honor, I can't answer that that other than to say has been there for at least 10 years to my knowledge and I would assume many years prior to that.

I think it is not an --

Justice John M. Harlan: It has not been revised.

Mr. Mark Wilmer: Pardon.

Justice John M. Harlan: Has there been any attempts to revise it?

Mr. Mark Wilmer: No, as far as I know Your Honor.

The rules as they now -- that is these rules as they now stand are those that probably I answered four years ago but I can't swear to that, I don't remember.

It's been a long time, we'll put it that way.

Chief Justice Warren E. Burger: May I ask you another question?

Mr. Mark Wilmer: Yes, Your Honor.

Chief Justice Warren E. Burger: Does this application require an applicant to restate whether he or she has ever been convicted of a criminal act?

Mr. Mark Wilmer: If he has a usual question whether not they have been involved in fraud whether or not they have been bonded and if such, there had a bond claim it against him and have they been involved in any criminal actions?

Chief Justice Warren E. Burger: I suppose if there was an applicant refuses to answer that particular question, with that applicant be done on the same procedure that Mrs. Baird is in at the present time with reference to the board's action?

Mr. Mark Wilmer: Yes.

Yes, I'm sure we're not going to say you refuse to tell us if you stole money somewhere so we're going to admit you anyway.

Chief Justice Warren E. Burger: Now then, if the answer to that question might be yes when I was 14 years old, I was found guilty as a juvenile of some offense, would that in and of itself bar or prevent her admission as a member of the bar?

Mr. Mark Wilmer: I can say this in all honestly, Your Honor, we've admitted people at their younger age have been guilty of burglary, statutory rape or what have she questioned have been rehabilitated?

Do they now measure up to the standards of who or what a person should be or appear she desires to be a lawyer?

Justice Thurgood Marshall: Mr. Wilmer, you also said she had yes to 27, that wouldn't automatically bar.

Mr. Mark Wilmer: To 27?

Justice Thurgood Marshall: To the question in 27.

Mr. Mark Wilmer: No, it would not bar her.

No, no, no Your Honor.

It would not.

Justice Thurgood Marshall: You then have a hearing and sort of hearing then.

Mr. Mark Wilmer: We would then endeavor to find out how deep did that belief lie.

And if it lay on the surface and then simply a childish thing, a passing fancy that's one thing.

If it descended to the depths of an embedded truth, fanatical, getting the Government should be destroyed.

I therefore then feel it that person should not be admitted to practice law.

Now, I would like to simply say then Your Honor that we are told that this belief that Mrs. Berg talks about is a political belief, it's a political matter, its something which is protected by the decision of this Court.

Therefore, we should not be permitted to inquire under thought processes connection with it.

I find it difficult, if it please the Court, to believe that the notion of a bomb dropped at the appropriate time in 17 different places in the United States and then attempt to take over the Government is a political matter and that is what I read into the notion of overthrowing this Government by force and violence.

1I do not read into the notion of assassination of public officials, members of the Congress or other persons which in positions of authority for the bad purpose.

I do not read that as a political activity or as a political belief which is subject to protection.

Some years back, unfortunately we had I suppose what was then considered a form of the administration of justice in the western states and unfortunately in other places commonly known as necktie parties.

But all of these are true that when that unfortunate individual was strung up who is suspected of having been a rapist, suspected of having been a murderer or whatever capital thief, whatever you want to term it.

I suspect that you might turn not the administration of justice but I don't believe that you would term that the administration of justice in the sense that we are speaking of the administration of justice today and by like talking, I do not believe that the notion of violence, a violent overthrow the Government of this country for the very purpose of destroying it as a political belief, if so on smarter than I will have to convince the other.

Now, I should deal briefly if it please the Court to this public versus -- Spevack versus Klein which is of course the -- probably the case that expand many of these things that are now coming to life.

Justice Byron R. White: Do you --

Mr. Mark Wilmer: Yes, Mr. Justice White.

Justice Byron R. White: Do you feel that the Fifth Amendment claim is open in this case?

Mr. Mark Wilmer: Incrimination?

Justice Byron R. White: Yes.

Mr. Mark Wilmer: I would not raise the point that it was not -- that is was not adequately raised Your Honor.

I would not raise that because I think at least we were unnoticed to the fact that she deserves that.

Justice Byron R. White: Was there any indication that at any time during these proceedings at least until it got to the Supreme Court that there was refusal to answer at question 27 on the grounds of self-incrimination?

Mr. Mark Wilmer: The answer to the question as given on the, in their, on the affidavit was not applicable.

I frankly do not --

Justice Byron R. White: Were there any correspondents or any conferences where the --

Mr. Mark Wilmer: Yes, I would have to say Your Honor my recollection is that probably it was raised.

Justice Byron R. White: The Fifth Amendment was raised --

Mr. Mark Wilmer: Yes I would say it.

Justice Byron R. White: Without refusing the answer to the question.

Mr. Mark Wilmer: I think it was Mr. Baird, I'm sure I can qualify my answer one where the other be but my recollection inside in this discussion with Mr. Allen and in related matters that at least to put the point we'd brought up that this amounted to incrimination.

Justice Byron R. White: So, was it -- it was urged in the Supreme Court of Arizona?

Mr. Mark Wilmer: Well, Your Honor the problem with that year that there's the brief, relatively brief petition filed.

The relatively brief response with the memorandum and the argument was not reported.

Justice Byron R. White: Was there a memorandum supporting the petition?

Mr. Mark Wilmer: Yes.

Yes.

Justice Byron R. White: Did that mention the Fifth Amendment?

Mr. Mark Wilmer: Your Honor, I have to confess, which I don't know.

If it would be -- it would be with the file but I don't have a sharp enough recollection at the moment to answer Your Honor and be of service to you.

I would simply say with respect to the Klein case which of course says that the lawyer may not be disbarred for refusing to answer the question that is relative at the Fifth Amendment?

I think that that case is not readily distinguishable.

I would be little optimistic to say that but I would say it is distinguishable and I think it is distinguishable on adequate grounds and that is the Fifth Amendment situation, if it please you, Mr. Justice White.

I don't like to use this illustration but I can't think of none more apt and that is this.

In Arizona and Massachusetts and Florida and Washington, they have what is called dog race and in that particular activity which is per mutual betting situation.

Dogs that have never run are what are called schooled.

In other words they are run through the race as if it was a race.

There time is recorded, the whole thing is recorded just like any race track in which way with desire to know about any dog or horse.

And based on that when they do start running they are (Inaudible).

Well, now the reason that is you has a track record.

You have something to go over and those that have been on the track and have run have already established themselves and I say therefore that when someone comes who has not have a track record as to we have no background, then rightfully a different rule should apply than from a lawyer who has been admitted to practice which established his reputation or his ability relative to practice, who has in all things carry himself such at the bar may property criticized.

And then therefore, I say that when we say that a lawyer who has been admitted to practice who is a practicing lawyer should be permitted to take the Fifth Amendment, I would readily distinguish that from the applicant who is a raw product, if I may use that, that expression, whose qualifications, whose future, whose ability is unknown that then we must judge and therefore we are entitled to ask many questions, we probably should not and could not answer at admitted lawyer.

I would just say and closely if it please the Court that there are some very sound reasons for the formality of this affidavit and the application.

I realized it is perhaps since burdens at some of the outset but without attempting if it please the Court to appear critical of our law schools.

I think one of the biggest problems that is met by the bar today and by the administrative committee is a complete default in many of the law schools of any attempt to teach ethics at all, of any attempt to teach professional responsibility and it is only when we bring these young people up short against an application which indicates, this is a mighty important thing.

This is a type of practice that is very, very important that all these things declared before you may practice.

We think that tends to bring to their mind and perhaps the consciousness of the importance of this.

I might just say it in one more other thing.

Seven or eight years ago, Ohio Supreme Court at the committees request, adopted a rule that says you can't be admitted to practice until you pass the examination of professional ethics.

You can't be admitted until you have passed that examination.

I will say this that we no longer have applicant who spell Canons of Ethics, C-A-N-N-O-N-S then I can spell up.

We do not catch anyone on the basis of that requirement.

We teach them how the lawyers, if it please the Court, that this is an important profession and that ethics is probably the most important part of it and therefore this type of an application, we feel, is highly important as bringing ho1me to the extent we can to the applicant, this is a mighty important thing you're going into.

This was a very, very serious thing that you're going into.

These questions are necessary because unless you live a road of spotless life you don't belong in our profession.

Justice John M. Harlan: Can I actually ask the number of questions perhaps they're a little outside the record that I think it's appropriate to ask them in understanding that in any other way.

In light of what you say your standards would be in Mrs. Baird in answering this question going further in satisfying yourself that this was something more than that belief in the abstract's answer.

Have you ever asked your Court to change the form of that question to incorporate those elements in it?

Mr. Mark Wilmer: No, but I think perhaps that this might be an indication we should Your Honor.

I like to say these are old, old questions and --

Justice John M. Harlan: Yes.

Mr. Mark Wilmer: I'm not at all here defending them.

I'm simply here saying that these are what we lived with.

Justice John M. Harlan: Second question that I wanted to ask you is if this litigation pending what's the fate of that question as it's in present form now or applicants refusing to answer or you're holding up or are they answering it or oops, they are not?

Mr. Mark Wilmer: Your Honor, they are both the management if they're now and raising the question of residency as being a right or any residency in the light of a Shapiro case.

We're now having a span of objections to any requirement of residency because of Shapiro case.

So, that for that as to this one question they seem to have become reconciled answer.

Justice Potter Stewart: As I understand it even on the full record that is here, we do not have Mrs. Braid's answers to question 25, is that --

Mr. Mark Wilmer: No, Your Honor but I would not make a point of that because my recollection is at Mrs. Braid did answered, if she haven't been sure we wouldn't made a point of it.

I cannot recall in detail what her answer was but I know it satisfied us or we would have or should have been but of my recollection is she did list quite a number for organizations but it is not here and I would take responsible --

Justice Potter Stewart: Would there be any objection either of you who is supplementing this record if this is an admitted fact that she answered them and do submit the --

Mr. Mark Wilmer: I'd be glad to Your Honor.

Justice Potter Stewart: Submit the answers.

Mr. Mark Wilmer: No (Voice Overlap).

Justice Potter Stewart: I myself I'd like to see the record supplemented.

Mr. Mark Wilmer: If I had realized it that we would have it here Your Honor but we'd be very happy to do it, supply it ourselves.

Mrs. Baird can supply whatever she can be.

Justice Hugo L. Black: Would she have been required on the answer in answering question 25 to state that she had been a member of the Communist Party, if she had?

Mr. Mark Wilmer: Yes.

Justice Hugo L. Black: That was required by question 25.

Mr. Mark Wilmer: Well, the broadness of the question states all of the decisions.

Justice Hugo L. Black: Well, it was required you said.

Mr. Mark Wilmer: It would do it in my judgment Your Honor.

Justice Hugo L. Black: We could proceed on the assumption that she has been asked if she belong to the Communist Party and has said no.

Mr. Mark Wilmer: We would accept it on its face value among something --

Justice John M. Harlan: Of course your question is a little broader, it's not on communist party but other subversive organizations.

Mr. Mark Wilmer: Correct.

Justice John M. Harlan: And therefore I would suppose that a failure to answer the party wouldn't necessary say address if this question is proper on 27, so that you don't have to bear it true and find out which of the organizations maybe subversive and so forth.

Mr. Mark Wilmer: I'm trying to make that point Your Honor that we do not have the facilities to chase down each organization and we feel that if someone knows it that she tell us but we do disagree with a notion that they are oblige to research and that all they need to say is I don't know if they don't know.

Justice Hugo L. Black: Now I would ask you a question at that.

Mr. Mark Wilmer: Yes Mr. Justice Black.

Justice Hugo L. Black: In view of your answer that further have when she was asked to state all of the organizations that she belong to since she had been 16 years old.

Was that asking her to state if she had been a communist just the same as 27 more on?

Mr. Mark Wilmer: My interpretation of that question Your Honor is really that it is a duplication of 27.

Justice Hugo L. Black: That is a duplication?

Mr. Mark Wilmer: Yes, I --

Justice Hugo L. Black: And she did answer?

Mr. Mark Wilmer: She didn't answer 27.

Justice Hugo L. Black: She stated the things she said she's belong to.

Mr. Mark Wilmer: Yes, I'm sure that is right Your Honor.

Chief Justice Warren E. Burger: I think you have just one minute left Mr. Baird.

Argument of Peter D. Baird

Mr. Peter D. Baird: One minute I'll take.

I would like to respond to Mr. Justice White's question about the Fifth Amendment.

It was raised in a letter to Mr. Wilmer and the committee and this is part of the record.

It is in June 27, 1968 in a form of a letter were Spevack versus Klein was discussed and there was a memorandum attached to that where the application of the Fifth Amendment to the bar admission process was discussed and Mr. Wilmer's brief that there was a statement that she did not assert the right of self-incrimination but this is in a letter dated July 31, 1969.

Mr. Wilmer sent to Mr. Davis, the clerk of this Court stating that that was an incorrect statement that in fact she had asserted the privilege.

Justice Hugo L. Black: Of what?

Mr. Peter D. Baird: Pardon me.

Justice Hugo L. Black: Privilege of what?

Mr. Peter D. Baird: Against self incrimination, the Fifth Amendment right.

Justice Hugo L. Black: Was it at the time she answered this question a crime against the federal Government to belong to an organization which is pledged to overturn the Government by force.

Mr. Peter D. Baird: By literal reading at the Smith Act I would say yes.

Justice Byron R. White: But she answered the question 25?

Mr. Peter D. Baird: Answered question 25.

Justice Byron R. White: And why did she refuse to answer that?

Mr. Peter D. Baird: Because we were required Mr. Justice White under Konigsberg and Anastaplo to answer that question which called for the names of organizations.

She was specifically directed by the mandate in those cases we believe to answer that kind of a question.

Justice Byron R. White: What if the question 25 is to state whether you are a member of the Communist Party and also state all other organizations of which you are a member.

Would you have had the right to assert the privilege in any respect?

Mr. Peter D. Baird: Not at that point at all, no.

Justice Byron R. White: Why not?

Mr. Peter D. Baird: Because I think Konigsberg and Anastaplo required the pain of being a --

Justice Byron R. White: Would you take you're entitled to assert the privilege of self incrimination as the first part of question 27?

Mr. Peter D. Baird: No, I believe the first part with respect to the name of the communist party, she does not have that right however --

Justice Byron R. White: You say that the State may and in spite of the privilege as Mrs. Baird, are you a member of the communist party?

Mr. Peter D. Baird: Under Konigsberg and Anastaplo.

Justice Byron R. White: Well, that is but I want to know what you're asserting here.

Are you asserting the privilege against self-incrimination to shield Mrs. Baird from having to answer the question, “Are you a member of the communist party?”

Mr. Peter D. Baird: I would say we cannot stand on that particular basis before this Court because of our answer to question 25.

Justice Byron R. White: Well the, what -- it would respect to what, are you asserting the privilege in this litigation?

Mr. Peter D. Baird: We are asserting the privilege to question 27 which requires us to make a determination of other groups in that category that she has already listed.

Justice Byron R. White: Was that a Fifth Amendment claim or a First Amendment claim.

Mr. Peter D. Baird: I, its both.

Justice Byron R. White: And how is it a Fifth Amendment claim?

It is a, you you've said I am.

Let's assume you had answered I am a member of the Communist Party.

Do you think then that -- do you think then that even though you had answered that question you could also assert the privilege and say I am privileged not to characterize the Communist Party?

Mr. Peter D. Baird: Well, there may be other groups Mr. Justice White such as I can maybe the STS is considered subversive, maybe they are in response to another question.

Maybe there are other organizations which she can draw the line on and question 27 is.

Justice Byron R. White: We have a question 27 only refers to the organizations that you listed in 25?

Mr. Peter D. Baird: Well, it in effect would have that practical result, yes.

Justice Byron R. White: And so you looked at those questions that those organizations you listed in 25 and you ask yourself are there any of these groups subversive, I have listed them or any of this group subversive, you think that is a, you have a Fifth Amendment right then refuse to answer that question?

Mr. Peter D. Baird: Yes.

Chief Justice Warren E. Burger: Thank you Mr. Baird.

Thank you for your submission gentlemen.

The case is submitted.

Print this transcript Transcript:

Argument of Peter D. Baird

Chief Justice Warren E. Burger: Number 53, Baird against Arizona.

Mr. Baird.

Mr. Baird: Mr. Chief Justice may it please the Court.

My name is Peter Baird and I represent petitioner and this cause.

The case before you is on writ of certiorari to the Arizona Supreme Court and it concerns a refusal to admit petitioner to the practice of law in Arizona.

She has graduated from Stanford Law School, she has passed the bar examination and the refusal stands upon her refusal to completely fill out a questionnaire and affidavit prescribed by the Arizona rules of the Supreme Court of Arizona.

There are two particular questions that are involved in this case.

First is the question she did answer and this was question 25 and we set it for on page three of our brief.

This is and I quote, "List all organizations, associations and clubs other than bar associations of which you are or have been a member since attaining the age of 16 years."

This petitioner did, she listed each and every organization to which she has belonged.

The next question --

Justice Potter Stewart: Mr. Baird, I saw that in the brief and then I looked in the appendix and I found that the form in the questionnaire was there but I didn’t see the answers that she gave to that question or did any other question.

Mr. Baird: Mr. Justice Stewart, we do not have as part of the record the answers to the questions.

That is part of the committees’ files and they were not introduced so far as I know before at the Supreme Court.

Justice Potter Stewart: And how do we not then know so far as the record goes that she did fully answer question 25?

Mr. Baird: We alleged that in our verified petition before the Arizona Supreme Court and so far as I know this was not denied and the refusal to admit petitioner is expressly based by the committee upon her refusal to answer question 27, not question 25.

Question 27 reads as follows --

Justice Potter Stewart: I just think it just appears to me and maybe I'm quite wrong and in the course of your argument, maybe you’ll persuade me so, but that the validity of the refusal to answer question 27 might depend upon what answer was given to question 25 and we don’t know what answer was given to question 25.

Mr. Baird: That is true, as part of the record you do not know the names of the organizations to which she has belong which she did list.

Justice Potter Stewart: Well, I don’t want to throw you off here.

Mr. Baird: Her question, question 27 reads "Are you now or have you ever been a member of the communist party or any organization that advocates, overthrow of the Untied States Government by force or violence."

There is --

Chief Justice Warren E. Burger: Would you say that's one question or more than one question?

Mr. Baird: I would say Mr. Chief Justice that really is two questions, one which overlaps with the first question which she answered.

In other words the reference to communist party would show up in the question which she did answer.

If she had belonged to the communist party, it would have showed up in response to question 25 and there is no contention I might add parenthetically that any of those really is a communist party.

So the essence of her refusal goes to the requirement that she characterized.

The group she belonged to and listed in response to 25 as to whether they do advocate the overthrow of the government.

Chief Justice Warren E. Burger: Your brief as I followed your arguments in the brief places a great deal of emphasizes on the invasion of the petitioners right of free political association but may I ask you this question?

Do you include the second half of that question that is the question addressed to whether there is membership in any organization advocating the overthrow by force of the government as an invasion of politically, constitutionally protected right to political association?

Mr. Baird: Yes, we do Mr. Chief Justice.

Chief Justice Warren E. Burger: Then that means you contend that there is a constitutional right, guaranteed and protected right to overthrow the government by force and violence?

Mr. Baird: That is not correct Mr. Chief Justice.

Chief Justice Warren E. Burger: Does that follow?

Mr. Baird: No, I do not believe it do, I think that --

Chief Justice Warren E. Burger: Well, I hope sometime while you're on your feet you'll explain that to me.

Mr. Baird: I will -- I shall do it right now as a matter of fact.

The question as to forcing her to characterize whether any of the groups that she has belonged to is advocates the overthrow of the government of the United States by force and violence requires her to state whether under the Smith Act as I understand it.

Any of them actually does advocate the overthrow of the government.

Now, the burden upon the petitioner is significant in that respect.

It requires her to make various value judgments under the Smith Act and therefore would make her less likely to join these organizations.

As to whether membership per se, in this kind of an organization is unprotected conduct, I think that under the decisions in Elf Brown and perhaps in Robel that one must actually have a specific content to overthrow the government.

Be an active member, know that the organization advocates the overthrow of the government and share that purpose before that association or status maybe proscribed.

The most significant aspect of question 27 apart from the freedom of association aspect is the purpose for which question 27 is asked and this is extremely important in the freedom of association area where the burden in not upon the applicant to state why she shouldn't have to answer it.

The burden is shifted to the state to come forth with a compelling state interest to say why she should answer it.

The compelling state interest which the state has come forward with in this case and presented to the Arizona Supreme Court is and I quote as follows.

"Unless we are to conclude that one who truly and sincerely believes in the overthrow of the United States Government by force and violence is also qualified to practice laws in our Arizona Courts that an answer to this question is indeed appropriate."

The committee again emphasizes that a mere answer of yes would not lead to an automatic rejection of an application.

It would lead to an investigation and interrogation as to whether the applicant presently entertains the view that the violent overthrow of the government is something to be sought to be sought after.

If the answer to this inquiry was yes then indeed we would reject the application and recommend against submission.

Chief Justice Warren E. Burger: Don't you think that this question would be a similarly inappropriate to ask a candidate, an applicant for a job as a police officer?

Mr. Baird: If the purpose was to seek not the conduct of the police officer but rather his political beliefs and views, I would say that it would be inappropriate.

This Court has almost an unbroken chain of precedence saying that belief is absolute Mr. Chief Justice, and I would submit that in any situations except those involving absolute discretion would be a point to uphold the public service.

The beliefs or brainwaves of an individual are not the concerned or the business of the state.

It seems to us that the case really is controlled by Speiser versus Randall.

In that case where a tax exemption was depended upon the execution of an affidavit stating that the applicant did not advocate the overthrow of the government, this Court inferred in holding that that denial of the tax exemption was unconstitutional.

That there was a frank aim at suppressing dangerous ideas and therefore it was unconstitutional.

We say that our case is even stronger, the right to practice law which has been described by this Court as far back as 1867 as a right is much more precious than a tax exemption.

In our case we need not infer an assault upon political belief, it is frankly out in front of us by the expressed statement and very candid mission of the committee.

The affect upon holding that belief is a valid subject of inquiry for the state bar or for any other government institution seems to be involved in a tremendous amount of deterrence, of thought control.

Of perjury problems if the person is under oath as to how do you known whether an individual is telling the truth with respect to matters of the mind, I guess one of our basic points in this area was made in 1867 in ex parte Garland where a former confederate member of the confederate core sought to be a lawyer and was barred because he could not take the oath of office required of him.

This Court and holding that to be a Bill of Attainder said that the right to practice law can only be deprived of by misconduct consisting of moral or professional delinquency.

This point was also referred in Schware v. Board of Bar Examiners where it was noticed that it would be important that the petitioner there actually participated in some unlawful conduct.

We believe that disbarment in the criminal law sanctions are sufficient to present any sort of threat which is posed by ones mind.

In function, this question 27 is really a test oath because it is not a conduct.

It is not asked for the purpose of finding out whether an individual engaged in unlawful conduct.

It is asked for the expressed purpose of finding out whether one has an intent which is to overthrow the government of the United States.

Justice Potter Stewart: And I understand it Mr. Baird that it's your submission that it's no business at all of the government, either in hiring employees or in qualifying applicants for to follow various professions that it's absolutely no business of government to ask any questions of any kind to such applicants as to those applicants beliefs.

Mr. Baird: As to political beliefs and religious beliefs in particular Mr. Justice Stewart.

Justice Potter Stewart: Well now its -- your narrowing it a bit now.

Mr. Baird: Well now I can see that you might say that a bar examination is to test ones thought processes of some sort because it goes to competency.

I don't believe that --

Justice Potter Stewart: Well apart from merely technical professional in competency, let's take the police officer and let's say he's of the requisite weight and height and these educational qualifications.

But then they -- he comes to their attention, he believes in that all Negroes are inferior, that their all criminals and that there should be absolute segregation in the races -- between the races in the city in which he's applying at as a police officer, either a chance relevant at all, to his ability to act as a police officer representing the public?

Mr. Baird: I think it may be relevant Mr. Justice Stewart but I don't believe that relevancy in this situation can be the subject for can be the substitute for a constitutional ban which I understand under the holdings of this Court.

If belief is absolute as we said in Cantwell v. Connecticut.

If use of the individual are in violent, then I submit that it cannot be in violate in some instances or absolute in other instances.

Take the situation of a lawyer where he believes very strongly in opposing the equal protection clause of the United States Constitution.

He opposes Brown versus Board of Education.

He has a state of mind which is inconsistent with the following of the mandates of this Court and of the constitution.

One could say that is relevant because it maybe transposed into conduct which would obstruct equality and --

Justice Potter Stewart: But it has to do with his belief as to what the Equal Protection Clause of the 14th Amendment means.

Well let's assume that he is very strongly of the belief that the way to solve human problems, controversies between human beings or between that individual in the state is not by law but is by throwing bombs.

Now do you think he ought to be admitted to be a lawyer in the state?

Mr. Baird: In so far as --

Justice Potter Stewart: If all his beliefs are that the law is absolutely a useless mechanism to solve any problems and that the way to do it is by assassination and bombs and machine guns.

Mr. Baird: In so far as that is a thought process and does not approach action, then I say that, "Yes, that is protected just the same as a belief of declaring or fighting wars without congressional declaration."

I think there are sort of thought which are inconsistent which if transposed into conduct post enormous threats to the security of the United States but the converse, the choice is opening a wedge into a freedom of a mans mind.

Justice Potter Stewart: But were not here talking about whether or not such a belief might be protected in the abstract which I suppose that everybody would agree to.

But the question is about whether such a person is the kind of a person who would have the proper ingredients to be a lawyer.

On account of state which does setup standards for to admission to his bar.

Relevantly, make such an inquiry.

Mr. Baird: Not into his mind, into his background, his conduct, his character but not into his mind Mr. Justice Stewart because you could ask that kind of question in any sort of a context.

With respect to any kind of belief which means some bar committee must have a valued judgment in mind as to what is good belief and what is bad belief and as I understand the Flag Salute case in West Virginia v. Barnette this Court said that no official hire pity has the right to prescribe what is orthodox in politics, religion or matters of the conscience and a mans mind really is a very --very highly protected right.

In the abstract or in the concrete either way and it is our contention that this kind of a question which is aimed at belief can be sharply contrasted from the oath which the petitioner is seeking to take.

The oath of office which is sanctioned in Arizona by the rules of this Court and by the constitution to support the laws of the United States and she is willing to do this and that is an oath that is not broken by thought, it is an oath which is broken by conduct for unlawful conduct.

Justice Byron R. White: Well, I take it if you go on and say not only may they not pry into the mind but that the petitioner may -- is constitutionally entitled not only to believe without being barred from admission of the bar, but also to join an organization with others who have similar beliefs.

In the first place and secondly to join an organization of others who have not only similar beliefs but who actively the organization as an entity, actively pursues the overthrow of the government by force and violence.

The petitioners constitutionally entitled to join that organization, still be a member of the bar until the message is proved that by conduct he joins the activity of the organization.

He joins in the activity of the organization.

Mr. Baird: Mr. Justice White I first of all say that isn't the case here but I do wish to meet your point which is when you move from the area of belief.

The continuum into conduct and the closer you come to conduct the more likely I am to say that the bar committee has every right to examine that conduct and make it's determination as to whether it indicates moral turpitude or bad moral character.

I would say that if an individual belongs to the communist party or some very unpopular organization such as that or take it on the right side of the spectrum of the minute man or whatever.

But that person, until he actually violates the law by his conduct, I do not believe that he should be denied the right to practice law.

Justice Byron R. White: Well let's assume that there is some point in which his affiliation with the organization would disqualify.

May the state as a preliminary matter ask him if he's a member of the organization?

Mr. Baird: In our case, I say yes. We have answered every organization to which the petitioner --

Justice Byron R. White: You would say that the state may say to a person "Are you a member of the communist party"?

Mr. Baird: Yes, on the basis of --

Justice Byron R. White: And then disqualify him if he refuses to answer?

Mr. Baird: Well that brings -- well I think that probably is closer to the facts of the case which will follow us than ours but I would say that as in so far as Konigsberg and Anastaplo state the law that the petitioner in this case as she did must answer a question asking for the name of an organization.

She --

Justice Byron R. White: A specific question whether they can disqualify her if she is a member, I understand that.

And you think it's a different question too?

Mr. Baird: You mean if she's already a lawyer?

Justice Byron R. White: No, if she answers yes it's a different question as to what she can be disqualified from practice.

Mr. Baird: If I follow you right, yes.

Justice Hugo L. Black: Where is her answer to 25?

Mr. Baird: Where is her answer?

Justice Hugo L. Black: Is it in the record in around?

Mr. Baird: I do not believe it is Mr. Justice Black.

I don't think that the committee entered that into evidence before the Arizona Supreme Court so it's not --

Justice Hugo L. Black: You mean they didn't put in her answer to question 25?

Mr. Baird: I do not think so; I do not recall that that is actually part of the record.

All I know is that we alleged that she fully and fairly answered the question and that there is no --

Did they say she answered 25?

Mr. Baird: Yes.

Justice Hugo L. Black: Has she been accused of not answering 25?

Mr. Baird: No, she has not been accused of not answering question 25.

Justice Hugo L. Black: And they asked her all the organization she belonged to since she was 16?

Mr. Baird: Since she's 16, under Konigsberg --

Justice Hugo L. Black: We have to take it as though that answered and answered truthfully?

Mr. Baird: Yes, I think so.

We alleged in our verified petition to the Arizona Supreme Court that this question was answered fully and truthfully and this was not really denied at all.

It has been, and as a matter of fact the committee has stated in its position before the Arizona Supreme Court that the only reason that they are keeping the petitioner from practice law is her refusal to answer question 27 thus clearly --

Justice Hugo L. Black: But why doesn't 25 cover it?

Mr. Baird: Well because question 27 asks --

Justice Hugo L. Black: Unless they're trying to get her to swear that the communist party believes in overthrowing the government by force.

Mr. Baird: I think the purpose for the question is that -- well the answer is that she had answered question 25, so in far that as they would need that information to find references to investigate petitioners background and conduct, they can get it because they have all of the groups to which she belonged.

They can use that --

Justice Hugo L. Black: How many are there?

Mr. Baird: Pardon me?

Justice Hugo L. Black: How many were there, do you know?

Mr. Baird: I can't remember, but in so far that is a valid purpose they can use the answer to question 25 and find these references.

Justice Hugo L. Black: You'd give a hundred women's associations and clubs?

Mr. Baird: I think the girl scouts was one of them, was on that list.

In so far there's a valid purpose, it could be served by her answer to question 25 because she was probably required under Konigsberg and Anastaplo to answer a question asking for membership because there is a possible valid purpose but to ask question 27 having already answered question 25.

They needed now to investigate ones beliefs and it is our position here that beliefs are not a legitimate subject for inquiry.

Chief Justice Warren E. Burger: But are you suggesting that on the record as it now stands before us, this case is in the same posture as it would be if she had answered 27 by saying "I have already answered this question and answer 25"?

Mr. Baird: No, it really isn't Mr. Chief Justice --

Chief Justice Warren E. Burger: So it is a different question?

Mr. Baird: It is a different question because question 27 asks --

Justice Hugo L. Black: But it's not a different question about her belonging to associations, is it?

Mr. Baird: Well yes and so far it's a communist party is --

Justice Hugo L. Black: This one, one asked all associations and just picked one out in particular.

Mr. Baird: As well as asking whether in affect are any of those organizations you listed in response to question 25.

Is anyone of them -- does anyone of them advocate the overthrow of the government by force and violence?

This does bring --

Justice Byron R. White: As I understand that do you find belief that that is an inquiry of belief I gather only from the response of the committee itself.

You don't find that facing that --?

Mr. Baird: That is correct; it has been supplemented by the committee, apparently coming forward as it must on your NACCP versus Alabama to come forward with a compelling state interest to move in to the area of freedom of --

Justice Byron R. White: What do you think the state now argues in this Court as to what the reason for the question?

Mr. Baird: I think that the reading of brief of the respondent that the text of their answer has changed somewhat.

Justice Byron R. White: So whom should we believe, the bar committee or their bar committee's views as expressed in the court below or the bar committee's views as it's expressed here now?

Mr. Baird: I think you should probably ask them but I submit that it should be --

Justice Byron R. White: But would accept whatever answer they give?

Mr. Baird: No, I would not.

I think that it should be the committee's answer which was presented to the Arizona Supreme Court which ruled on the basis of that memorandum of points and authorities thereby presumably adopting the position of the committee because I had no opinion.

Justice Byron R. White: Well what if the judgment is sustainable on another ground?

Mr. Baird: You mean that you would just ignore the political belief point and move into some other substantive --

Justice Byron R. White: What would the state now asserts, what sustained the matter --

Mr. Baird: I think that as I understand --

Justice Byron R. White: -- offer for it?

Mr. Baird: I understand the appellate procedure it is the general rule that you must present the issues to the lower court as a normal matter before they can be presented here.

However this is certainly under the digression of this Court to waive, I'm sure.

Justice Byron R. White: But this is the -- they're all First Amendment claims aren't they?

Mr. Baird: Our claims are First Amendment as well as Fifth Amendment.

Justice Byron R. White: Yes, well if the First Amendment claim was presented in the lower court and if the judgment of the lower court on the First Amendment claim is sustainable on another First Amendment ground, is that improper appellate practice?

Mr. Baird: I -- I would say that in so far as this case is concerned, yes because before the Arizona Supreme Court, the attack was clearly on political belief.

Justice William J. Brennan: But what about this Mr. Baird, I noticed Mr. Wilmer's brief in page three.

He says "This committee has made it abundantly clear that regardless of the political beliefs and views of Sara Baird.

It is only if she is found to be actively believed to the notion of the spouse an act of this rule in implementing the notion that our government be destroyed by course of violence that a favorable recommendation will be reputed by the committee."

I gather the argument is that they ask the question only to illicit the answer to something like this and if she doesn't answer that she actively believes in or a spouse as an activist role, but then she be admitted to bar, is that right?

Mr. Baird: Apparently but that statement is a far cry from the statement that the --

Justice William J. Brennan: Well, it certainly is far cry from what they said before, am I right?

Mr. Baird: -- committee stated before the Arizona Supreme Court.

It said that it would lead to an investigation as to whether or not the applicant presently entertains the view and if so then they would reject the application.

Justice William J. Brennan: Now we are opposed or are you with deciding this on the basis of memorandum or deciding this on the basis of the argument of the brief, which?

Mr. Baird: I submit that it should be decided on the basis of the issue as was presented to the Arizona Supreme Court for their decision.

Justice William J. Brennan: I expect you would, but well, let me ask this, do you suppose the committee if indeed the question were directed to what the board is now said that the directives that constitutionally bears and it has any other claims?

Mr. Baird: Yes, I do.

I read the committee's statement as still encompassing belief because it says actively believe I still say that that refers to her beliefs as I suppose to and spouses that at the greatest extent would involve speech and that does not come close to the Brandenburg decision this Court annunciated just last term where it said that "You must espouse directed toward action and is likely to produce action of an imminent violent sort or something to that nature", which is really again a far cry from this statement by the committee.

Justice Potter Stewart: But Mr. Brandenburg wasn't an applicant to the bar of Arizona.

Mr. Baird: That is absolutely correct; there is no question about that.

Justice Potter Stewart: What's the posture of this case procedurally?

I'm thinking I've had in mind concerned about the finality, in other words if this question 27 where it answered no.

I suppose that would be the end of the case?

Mr. Baird: I assume so, yes.

Justice Potter Stewart: And since it hasn't yet been answered at all is it a final judgment over which we can take jurisdiction?

Mr. Baird: I think so, in Konigsberg and Anastopalo, they did not answer the question with respect to their associations and it seemed to be final and Schneider versus Smith where the merchant marine applicant was involved.

He refused to answer questions at that time, if he had answered them I suppose that could've disposed of the case.

Justice Potter Stewart: For sometimes I don't have in mind the precise posture of those cases but sometimes it could resolve in contempt and what not. But that hasn't happened --

Mr. Baird: No.

Justice Potter Stewart: -- here, it's just pending.

It is just pending, if the answer is no to that question then that's the end of it I suppose, she's admitted to the bar is that it?

Mr. Baird: I suppose so.

Justice Potter Stewart: And if the answer is yes then there maybe more proceedings and they might not be admitted to the bar?

Mr. Baird: Yes, that is true.

Justice Potter Stewart: Now why is it anything final over which we have jurisdiction at this juncture?

Mr. Baird: Well because I don't believe that the committee can require and answer to an unconstitutional question which is posed to seek out political belief, to --

Justice Byron R. White: That is what the question asked.

That is what the questioned ask, your just relying on the statement as to what they would do if she answered the question or the reason for the question.

Mr. Baird: The question requires her to make a judgment and the burden presumably is upon her to see whether they advocate the overthrow of the government by force and violence.

This requires her to deal and grapple with the issues of the Smith Act and that kind of a burden was specifically condemned in Speiser v. Randall where it said that the burden in this area should not be applied on the person who seeks a tax exemption.

Justice William J. Brennan: Is this a First Amendment argument?

Mr. Baird: This is -- yes it is because it would make one very much less likely to join an organization if he has to always make judgments as to whether that organization advocates, and if he misses in his judgment as to whether that organization advocates, He could be prosecuted for perjury, I probably wouldn't stand up but he could be prosecuted, this is under oath.

Justice John M. Harlan: Well am I wrong in thinking that Mrs. Baird will not be admitted to the bar if the record shows that you will not be admitted to the bar unless she answers the question?

Mr. Baird: If she answers the question --

Justice John M. Harlan: Unless she answers the questions.

Mr. Baird: Unless she answers the question she will not be admitted to the bar.

Justice John M. Harlan: Didn't the record show that?

Mr. Baird: Yes, it does.

Justice John M. Harlan: Well I would suppose there's plenty of finality on that?

Mr. Baird: Yes, I think that there probably would be.

The very last point is our Fifth Amendment argument and this is simply to the effect that if an answer is required and if the answer were yes it would be an incriminating circumstance and a link in the chain.

If Spivack versus Klein is to be applied to the bar admission area as oppose to the disbarment area.

That seems to us that logically petitioner would be able to be a member of the bar of Arizona solely and entirely upon the Fifth Amendment.

We respectfully request that the decision of the court below be reversed.

Print this transcript Transcript:

Argument of Mark Wilmer

Chief Justice Warren E. Burger: I think, Mr. Baird you have one minute left and I take it you're reserving that for a rebuttal.

Mr. Wilmer, you may proceed.

Mr. Wilmer: May it please the Court.

I think at the outset it might be appropriate and go serviceable to the Court, if we would first put in proper relationship, proper context the record in the court below.

I would say at the outset that the position of the respondent is not one of an advocate either way so far as this question of finality is concerned.

As we review our responsibility here to simply to bring to the Court the facts with respect to this question and then proceed on to as best we can explain the other proceedings in the Court below.

I think the best way to put the record in proper relationship to the actual facts is perhaps to begin with the response which was filed by the committee in the Supreme Court of the State of Arizona.

Now, it is my understanding from reading rules of this Court that papers that are certified by the clerk of the lower court are part of the record and subject to being considered in this case.

The original, however, is in the record and I would like briefly to refer to that with the Court's permission.

I say that for this reason that we have indicated our position as one of simply here are the facts we made us on the citing of the case now as any other time if in fact this Court has jurisdiction.

Nothing could be chored from the true fact.”

Justice John M. Harlan: Are you reading from the --

Mr. Wilmer: I'm reading Your Honor and then I'm sorry this is not in the printed appendix, Your Honor.

It is in the original of the respond certified by the clerk of the Arizona Supreme Court to this Court.

Justice John M. Harlan: And why isn't this on the appendix?

Mr. Wilmer: Well, Your Honor, I must say it frankly, I didn't suppose it would be needed at the time when I read the appendix as certified.

In other words, we did not have a complete view of the flow of the case in this Court as to what or would not be material.

Because I read your rules and I assume I am correct.

Even though it is not printed in the appendix, nonetheless say for this part of the certified record, it may be referred to before this Court.

Of course if that is not true, I should not do so.

Justice John M. Harlan: Is the paper actually physically in the clerk's office?

Mr. Wilmer: It should be, Your Honor.

Justice John M. Harlan: Oh, thank you.

Mr. Wilmer: This would be the responds of the committee to the petitioner's order to show cause and may I please the Court in this Arizona Supreme Court.

Justice John M. Harlan: (Voice Overlap) I'm reading that again then since we have all have the cause.

Mr. Wilmer: Yes Your Honor, I'm sure.

I'm sorry I have finally realized the moment (Inaudible).

The committee has not rejected the application of Sarah Baird and does not intend to do so, unless and until further facts appear which would warrant this rejection.

In other words, this was the discussion of counsel prior to the initiation of this proceeding.

Justice John M. Harlan: Could I ask you a question Mr. Wilmer?

Mr. Wilmer: Yes, Your Honor.

Justice John M. Harlan: Assuming this litigation never been brought and Mrs. Baird simply persisted in her view that she didn't have to answer the question.

What would have happen to her application to the bar, her admission to the bar?

Mr. Wilmer: Her application, Your Honor, which still as it is today sitting on our shelves waiting for her to either move her mandamuses to complete the processing of it or something else would have happen.

In our position of that may I say this briefly Your Honor.

The Committee on Examinations and Admissions is a criterion hand made of the Arizona Supreme Court.

Justice John M. Harlan: Yes.

Mr. Wilmer: We have no authority other than that which the Court gives us and I might say if it should become of consequence, the entire rules of the Arizona Supreme Court that are in volume I believe it is 17 of West Publishing Companies of Arizona revised statues.

They govern, they limit, they set to the extent of our authority.

We have no inherent authority or any kind, the rights other than oath givens by the rules.

Therefore, when the Court says to us, ask these questions and they're set out verbatim and this is one of them.

Get the answers from them and then you proceed to certify to this Court your opinion.

We have no choice as far as we're concerned, we are stymied.

We cannot reject it much more as we could if we want to be arbitrary, perhaps we should.

I don't know but the facts are that in less and until that question is answered or someone tells us that we most do something else that case with that matter we'll say it as it is.

Is that accurate?

Mr. Wilmer: Only to this extents, Your Honor.

The committee has no authority one way or the other to admit or reject anyone.

We merely make a recommendation to the Arizona Supreme Court does the admission, does the rejection.

Now, whether she should bring a mandamus and in that faction call upon the Arizona Supreme Court to make an effective ruling that is not automated within our providence.

I would simply say that as are the moment at least, the Arizona Supreme Court has been told by the committee.

We haven't made our decision.

We are unable to make a decision and therefore we submit the matters as it is and the Court simply said, “Well we deny the petition, you should complete due process in this petition.”

Now, whether that amounts to finality or not within the rule of this Court, I don't know, I express the opinion as to it, I simply bring it to the Court's attention.

This would not necessarily cause us to reject her application.

Now, I say that for this position for this reason if it please the Court.

We have had here what I would term some rather fancy steps down the sidelines, so to speak, of what words mean.

I believe that as we proceed, we'll find the committee made it an unequivocally and plainly apparent to Mrs. Baird.

We were not concern with what her beliefs were such.

We are not concerned with looking inside her heart to see what she believe or didn't believe in.

Now, a fair reading, I believe if it please the Court of the committee's a letter to Mr. Allen.

The Committee's response to the Arizona Supreme Court have our response here indicates simply one thing whether we use the word "belief" or whether we use the word "view"1 or whatever word we use.

We are concerned with one thing.

I heard yesterday the questioned ask if Mr. Baird would prefer the question he presented here whether the record he's made in the court below or here.

And I believe he said here.

I have to confess surprise.

I wrote them both and I really didn't think I was saying anything different one time than the other.

Justice Thurgood Marshall: Mr. Wilmer.

Mr. Wilmer: Yes, Your Honor.

Justice Thurgood Marshall: The statement in your brief, you want to know whether not Sara Baird is only if she is found to actively believe.

Mr. Wilmer: That is right.

Justice Thurgood Marshall: What that meant?

Mr. Wilmer: Below?

Your Honor, I meant by that that she was prepared to go out and walk up and down the streets and take other step necessary to advance.

Justice Thurgood Marshall: Well, let's leave it if she's willing to walk up and down the streets.

Mr. Wilmer: Pardon, Your Honor.

Justice Thurgood Marshall: Well, let's take the first one.

Suppose she is willing to walk up and down the street.

Mr. Wilmer: Advocating the Government -- overthrow the Government by force and violence?

Justice Thurgood Marshall: Yes.

Mr. Wilmer: I would say if it please the Court that number one that that would contravene the Canon of Ethics, which said you shall do nothing to bring at disrepute the profession of the law or the Court.

Justice Thurgood Marshall: Well, I supposed he catch up at a sign which says I don't like Colorado.

Mr. Wilmer: I don't like which one?

Justice Thurgood Marshall: Colorado or the United States.

Mr. Wilmer: I would have no problem with that at all.

I think that's her privilege.

That's her privilege.

Justice Thurgood Marshall: Where is the line you're going to get on this?

Mr. Wilmer: The line that I draw Your Honor is when you talk about destruction of this Government by force and violence.

Justice Thurgood Marshall: Believe in it or do it?

Mr. Wilmer: Pardon.

Justice Thurgood Marshall: Just to believe in it?

Mr. Wilmer: The committee's position Your Honor was not just a belief.

Your committee, the committee's position was actively accept and actively advanced that philosophy and that solution.

Justice John M. Harlan: Well, I think you get much of this for saying (Inaudible).

Mr. Wilmer: Yes, certainly.

Justice John M. Harlan: Oh, I see.

Mr. Wilmer: We couldn't care a less what are beliefs are in any field except that which endangers directly upon the validity and the utility of her service as a lawyer as to those matters we are concerned and we're critically concerned.

Now, --

Justice Thurgood Marshall: Does this means that you do some act in addition to believe it?

Mr. Wilmer: I would say your (Voice Overlap) the occasion is right, you would do it, yes and I don't believe that person should be a lawyer.

Justice John M. Harlan: Those first statutes that you're talking about are not incorporated in the question.

Mr. Wilmer: They would have been incorporated in the questions asked.

Justice John M. Harlan: You have to take a position that this is preliminary?

Mr. Wilmer: Yes, Your Honor.

Justice John M. Harlan: Preliminary that needs further investigation.

Mr. Wilmer: Our rules provide Your Honor that in making its investigation, the committee can conduct an informal or formal investigation.

Do you?

Or that point will you retire and negate the oath which you took?

Justice John M. Harlan: Could I ask you another question?

Mr. Wilmer: Sure, Your Honor.

Justice John M. Harlan: How long has this questioned in the present form been part of the process and requirement for admission?

Mr. Wilmer: Your Honor, I can't answer that that other than to say has been there for at least 10 years to my knowledge and I would assume many years prior to that.

I think it is not an --

Justice John M. Harlan: It has not been revised.

Mr. Wilmer: Pardon.

Justice John M. Harlan: Has there been any attempts to revise it?

Mr. Wilmer: No, as far as I know Your Honor.

The rules as they now -- that is these rules as they now stand are those that probably I answered four years ago but I can't swear to that, I don't remember.

It's been a long time, we'll put it that way.

Chief Justice Warren E. Burger: May I ask you another question?

Mr. Wilmer: Yes, Your Honor.

Chief Justice Warren E. Burger: Does this application require an applicant to restate whether he or she has ever been convicted of a criminal act?

Mr. Wilmer: If he has a usual question whether not they have been involved in fraud whether or not they have been bonded and if such, there had a bond claim it against him and have they been involved in any criminal actions?

Mr. Wilmer: Yes.

Yes, I'm sure we're not going to say you refuse to tell us if you stole money somewhere so we're going to admit you anyway.

Mr. Wilmer: I can say this in all honestly, Your Honor, we've admitted people at their younger age have been guilty of burglary, statutory rape or what have she questioned have been rehabilitated?

Do they now measure up to the standards of who or what a person should be or appear she desires to be a lawyer?

Justice Thurgood Marshall: Mr. Wilmer, you also said she had yes to 27, that wouldn't automatically bar.

Mr. Wilmer: To 27?

Justice Thurgood Marshall: To the question in 27.

Mr. Wilmer: No, it would not bar her.

No, no, no Your Honor.

It would not.

Justice Thurgood Marshall: You then have a hearing and sort of hearing then.

Mr. Wilmer: We would then endeavor to find out how deep did that belief lie.

And if it lay on the surface and then simply a childish thing, a passing fancy that's one thing.

If it descended to the depths of an embedded truth, fanatical, getting the Government should be destroyed.

I therefore then feel it that person should not be admitted to practice law.

Therefore, we should not be permitted to inquire under thought processes connection with it.

1I do not read into the notion of assassination of public officials, members of the Congress or other persons which in positions of authority for the bad purpose.

I do not read that as a political activity or as a political belief which is subject to protection.

Justice Byron R. White: Do you --

Mr. Wilmer: Yes, Mr. Justice White.

Justice Byron R. White: Do you feel that the Fifth Amendment claim is open in this case?

Mr. Wilmer: Incrimination?

Justice Byron R. White: Yes.

Mr. Wilmer: I would not raise the point that it was not -- that is was not adequately raised Your Honor.

I would not raise that because I think at least we were unnoticed to the fact that she deserves that.

Mr. Wilmer: The answer to the question as given on the, in their, on the affidavit was not applicable.

I frankly do not --

Justice Byron R. White: Were there any correspondents or any conferences where the --

Mr. Wilmer: Yes, I would have to say Your Honor my recollection is that probably it was raised.

Justice Byron R. White: The Fifth Amendment was raised --

Mr. Wilmer: Yes I would say it.

Justice Byron R. White: Without refusing the answer to the question.

Mr. Wilmer: I think it was Mr. Baird, I'm sure I can qualify my answer one where the other be but my recollection inside in this discussion with Mr. Allen and in related matters that at least to put the point we'd brought up that this amounted to incrimination.

Justice Byron R. White: So, was it -- it was urged in the Supreme Court of Arizona?

Mr. Wilmer: Well, Your Honor the problem with that year that there's the brief, relatively brief petition filed.

The relatively brief response with the memorandum and the argument was not reported.

Justice Byron R. White: Was there a memorandum supporting the petition?

Mr. Wilmer: Yes.

Yes.

Justice Byron R. White: Did that mention the Fifth Amendment?

Mr. Wilmer: Your Honor, I have to confess, which I don't know.

If it would be -- it would be with the file but I don't have a sharp enough recollection at the moment to answer Your Honor and be of service to you.

I would simply say with respect to the Klein case which of course says that the lawyer may not be disbarred for refusing to answer the question that is relative at the Fifth Amendment?

I think that that case is not readily distinguishable.

I don't like to use this illustration but I can't think of none more apt and that is this.

In Arizona and Massachusetts and Florida and Washington, they have what is called dog race and in that particular activity which is per mutual betting situation.

Dogs that have never run are what are called schooled.

In other words they are run through the race as if it was a race.

There time is recorded, the whole thing is recorded just like any race track in which way with desire to know about any dog or horse.

And based on that when they do start running they are (Inaudible).

Well, now the reason that is you has a track record.

I would just say and closely if it please the Court that there are some very sound reasons for the formality of this affidavit and the application.

I realized it is perhaps since burdens at some of the outset but without attempting if it please the Court to appear critical of our law schools.

This is a type of practice that is very, very important that all these things declared before you may practice.

We think that tends to bring to their mind and perhaps the consciousness of the importance of this.

I might just say it in one more other thing.

Seven or eight years ago, Ohio Supreme Court at the committees request, adopted a rule that says you can't be admitted to practice until you pass the examination of professional ethics.

You can't be admitted until you have passed that examination.

I will say this that we no longer have applicant who spell Canons of Ethics, C-A-N-N-O-N-S then I can spell up.

We do not catch anyone on the basis of that requirement.

This was a very, very serious thing that you're going into.

These questions are necessary because unless you live a road of spotless life you don't belong in our profession.

Justice John M. Harlan: Can I actually ask the number of questions perhaps they're a little outside the record that I think it's appropriate to ask them in understanding that in any other way.

In light of what you say your standards would be in Mrs. Baird in answering this question going further in satisfying yourself that this was something more than that belief in the abstract's answer.

Have you ever asked your Court to change the form of that question to incorporate those elements in it?

Mr. Wilmer: No, but I think perhaps that this might be an indication we should Your Honor.

I like to say these are old, old questions and --

Justice John M. Harlan: Yes.

Mr. Wilmer: I'm not at all here defending them.

I'm simply here saying that these are what we lived with.

Mr. Wilmer: Your Honor, they are both the management if they're now and raising the question of residency as being a right or any residency in the light of a Shapiro case.

We're now having a span of objections to any requirement of residency because of Shapiro case.

So, that for that as to this one question they seem to have become reconciled answer.

Justice Potter Stewart: As I understand it even on the full record that is here, we do not have Mrs. Braid's answers to question 25, is that --

Mr. Wilmer: No, Your Honor but I would not make a point of that because my recollection is at Mrs. Braid did answered, if she haven't been sure we wouldn't made a point of it.

Justice Potter Stewart: Would there be any objection either of you who is supplementing this record if this is an admitted fact that she answered them and do submit the --

Mr. Wilmer: I'd be glad to Your Honor.

Justice Potter Stewart: Submit the answers.

Mr. Wilmer: No (Voice Overlap).

Justice Potter Stewart: I myself I'd like to see the record supplemented.

Mr. Wilmer: If I had realized it that we would have it here Your Honor but we'd be very happy to do it, supply it ourselves.

Mrs. Baird can supply whatever she can be.

Justice Hugo L. Black: Would she have been required on the answer in answering question 25 to state that she had been a member of the Communist Party, if she had?

Mr. Wilmer: Yes.

Justice Hugo L. Black: That was required by question 25.

Mr. Wilmer: Well, the broadness of the question states all of the decisions.

Justice Hugo L. Black: Well, it was required you said.

Mr. Wilmer: It would do it in my judgment Your Honor.

Justice Hugo L. Black: We could proceed on the assumption that she has been asked if she belong to the Communist Party and has said no.

Mr. Wilmer: We would accept it on its face value among something --

Justice John M. Harlan: Of course your question is a little broader, it's not on communist party but other subversive organizations.

Mr. Wilmer: Correct.

Mr. Wilmer: I'm trying to make that point Your Honor that we do not have the facilities to chase down each organization and we feel that if someone knows it that she tell us but we do disagree with a notion that they are oblige to research and that all they need to say is I don't know if they don't know.

Justice Hugo L. Black: Now I would ask you a question at that.

Mr. Wilmer: Yes Mr. Justice Black.

Justice Hugo L. Black: In view of your answer that further have when she was asked to state all of the organizations that she belong to since she had been 16 years old.

Was that asking her to state if she had been a communist just the same as 27 more on?

Mr. Wilmer: My interpretation of that question Your Honor is really that it is a duplication of 27.

Justice Hugo L. Black: That is a duplication?

Mr. Wilmer: Yes, I --

Justice Hugo L. Black: And she did answer?

Mr. Wilmer: She didn't answer 27.

Justice Hugo L. Black: She stated the things she said she's belong to.

Mr. Wilmer: Yes, I'm sure that is right Your Honor.

Chief Justice Warren E. Burger: I think you have just one minute left Mr. Baird.

Argument of Peter D. Baird

Mr. Baird: One minute I'll take.

I would like to respond to Mr. Justice White's question about the Fifth Amendment.

It was raised in a letter to Mr. Wilmer and the committee and this is part of the record.

Mr. Wilmer sent to Mr. Davis, the clerk of this Court stating that that was an incorrect statement that in fact she had asserted the privilege.

Justice Hugo L. Black: Of what?

Mr. Baird: Pardon me.

Justice Hugo L. Black: Privilege of what?

Mr. Baird: Against self incrimination, the Fifth Amendment right.

Justice Hugo L. Black: Was it at the time she answered this question a crime against the federal Government to belong to an organization which is pledged to overturn the Government by force.

Mr. Baird: By literal reading at the Smith Act I would say yes.

Justice Byron R. White: But she answered the question 25?

Mr. Baird: Answered question 25.

Justice Byron R. White: And why did she refuse to answer that?

Mr. Baird: Because we were required Mr. Justice White under Konigsberg and Anastaplo to answer that question which called for the names of organizations.

She was specifically directed by the mandate in those cases we believe to answer that kind of a question.

Justice Byron R. White: What if the question 25 is to state whether you are a member of the Communist Party and also state all other organizations of which you are a member.

Would you have had the right to assert the privilege in any respect?

Mr. Baird: Not at that point at all, no.

Justice Byron R. White: Why not?

Mr. Baird: Because I think Konigsberg and Anastaplo required the pain of being a --

Justice Byron R. White: Would you take you're entitled to assert the privilege of self incrimination as the first part of question 27?

Mr. Baird: No, I believe the first part with respect to the name of the communist party, she does not have that right however --

Justice Byron R. White: You say that the State may and in spite of the privilege as Mrs. Baird, are you a member of the communist party?

Mr. Baird: Under Konigsberg and Anastaplo.

Justice Byron R. White: Well, that is but I want to know what you're asserting here.

Are you asserting the privilege against self-incrimination to shield Mrs. Baird from having to answer the question, “Are you a member of the communist party?”

Mr. Baird: I would say we cannot stand on that particular basis before this Court because of our answer to question 25.

Justice Byron R. White: Well the, what -- it would respect to what, are you asserting the privilege in this litigation?

Mr. Baird: We are asserting the privilege to question 27 which requires us to make a determination of other groups in that category that she has already listed.

Justice Byron R. White: Was that a Fifth Amendment claim or a First Amendment claim.

Mr. Baird: I, its both.

Justice Byron R. White: And how is it a Fifth Amendment claim?

It is a, you you've said I am.

Let's assume you had answered I am a member of the Communist Party.

Do you think then that -- do you think then that even though you had answered that question you could also assert the privilege and say I am privileged not to characterize the Communist Party?

Mr. Baird: Well, there may be other groups Mr. Justice White such as I can maybe the STS is considered subversive, maybe they are in response to another question.

Maybe there are other organizations which she can draw the line on and question 27 is.

Justice Byron R. White: We have a question 27 only refers to the organizations that you listed in 25?

Mr. Baird: Well, it in effect would have that practical result, yes.

Mr. Baird: Yes.

Chief Justice Warren E. Burger: Thank you Mr. Baird.

Thank you for your submission gentlemen.

The case is submitted.

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BAIRD v. STATE BAR OF ARIZONA. The Oyez Project at IIT Chicago-Kent College of Law. 27 April 2013. <http://www.oyez.org/cases/1960-1969/1969/1969_15_2>.

BAIRD v. STATE BAR OF ARIZONA, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1969/1969_15_2 (last visited April 27, 2013).

"BAIRD v. STATE BAR OF ARIZONA," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 27, 2013, http://www.oyez.org/cases/1960-1969/1969/1969_15_2.

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BAIRD v. STATE BAR OF ARIZONA