IN RE STOLAR
Legal provision: Association
Argument of Leonard B. Boudin
Chief Justice Warren E. Burger: Number 75, the application of Martin Robert Stolar.
Mr. Boudin, you may proceed whenever you're ready.
Mr. Leonard B. Boudin: Mr. Chief Justice and may I please the Court, this is a petition seeking review of an order of the Ohio Supreme Court denying the petitioner the right to take the Bar examination there which is a condition to admission to the Bar.
The petitioner was denied that right because of his refusal to answer three questions, a refusal based upon both First Amendment and Fifth Amendment grounds.
Those questions appear at the bottom of page five and the top of page six of the petitioner's brief. Question 12 (g), “States whether you have been or presently are a member of any organization which advocates the overthrow of the Government of the United States by force.
If your answer to any section of the above question is yes, set forth the facts in detail.”
Question 13, these are on two questionnaires says, “List the names and addresses of all club, societies or organizations of which you are have been a member.”
And question seven at the top of page six says, “List the names and addresses of all club, societies or organizations of which you are or have been a member since registering as a law student.”
I should say that the petitioner had been admitted to the New York Bar were then in Ohio working for a branch of the office in the economic opportunity and had applied for admission to the Ohio Bar.
Justice Potter Stewart: Or what he applied for was a permission to take the examination --
Mr. Leonard B. Boudin: Precisely, Your Honor.
Justice Potter Stewart: Quite right.
If he had been a member of the Ohio Bar for a certain number of years he could have been admitted on motion I think, is that still true?
Mr. Leonard B. Boudin: Now, when he appeared before -- when he got this question he declined to answer those questions on the application form on the ground of what he said was the Fifth Amendment and all of us have assumed that that meant for that stage privilege against self incrimination.
Subsequently, in meetings with the character committee members, he indicated that he was also relying upon the First Amendment and that he regarded the questions that were put as not pertinent to it's qualifications as a member of the Bar -- to be a member of the Bar. and when the character committee or the members of the committee eventually wrote their reports, they prayed very strongly the impression that this young man had made on them in their interrogation and one of them said that if the rest if the committee would not the mind the fact he hasn't answered these questions I would have recommend it as admission.
But the committee decided not to recommend his admission -- that is his admission to the examination.
And at that stage while the matter was appearing, was before the Ohio Supreme Court he retained counsel.
And counsel wrote to the Ohio Supreme Court, pointing out that the petitioner had raised First and Fifth Amendment grounds and that a recent decision of Judge Friendly in what we call the LSCRRC case, the Law Students Civil Rights Council case now pending in this Court at 696 and the recent decision by a statutory court headed by Judge Friendly questions of this very type were found by the statutory court to be improper and to impinge upon First Amendment rights and I will develop shortly the respects in which Judge Friendly found questions to this kind to be improper.
And the counsel suggested the desirability of appearing before the Ohio Supreme Court arguing the matter instead of the Supreme Court upheld the committee and to then order appearing at page 56A of the appendix denying the application of Mr. Stolar to appear before the Bar -- to take the examinations.
Now, we -- as I indicated before I am reasonably satisfied to the extent that the council could ever be could prevail in this Court on the grounds indicated by Judge Friendly and in the LSCRRC case and I will turn to those when I address myself specifically to the questions put by Ohio to Mr. Stolar.
We think, however, that there are more important problems, more fundamental problems relating to the entire question of political qualifications if I may use that term for the moment, to admission to the Bar.
And it's for that reason our first point, in our submission is that political belief and political association and political advocacy of any kind are not proper conditions or grounds for this qualification to admission to the practice of law.
As I say I realize the burden that I'm faced in presenting that proposition in the light of several cases in the Court for the assumptions underlining those cases but I want to address myself to that before I begin my argument on the second and third point which are that the test and the questions and the procedures followed by Ohio in this particular case violates the rule of precision which has been set down by this Court in a large series of cases in the last five or 10 years where the First Amendment rights may be impinged upon.
And my third argument is going to be very brief and that will relate to the right to assert the privilege against self-incrimination and answer the questions put by a character committee.
All three --
Chief Justice Warren E. Burger: Do you link those two propositions together in any way?
Mr. Leonard B. Boudin: I think these are completely independent, Your Honor.
The last two.
Chief Justice Warren E. Burger: The last two.
Mr. Leonard B. Boudin: The last two are completely independent.
Chief Justice Warren E. Burger: They're not suggesting the assertion of the privilege against the questions directed to inquiry about the Communist Party.
Mr. Leonard B. Boudin: I am suggesting that too and I will come to that at the last page as I am suggesting the right to assert privilege there.
I want to suggest very briefly because we have elaborated on our brief and that we'll require a -- we hope a reconsideration by the Court of some of the assumptions in Konigsberg and Anastaplo despite the fact that they effectuate distinguished by the element of the question of Communist Party membership which one reason or another has been regarded as sui generis in this Court.
I want to turn to the first proposition which is that it seems to us that those -- that a political test and I may suggest even out conduct which is unlawful, although, obviously we don't have to go that far here, is not related at the proper functions of the Bar.
Now, yesterday it as suggested by some members of the Court that the fact that some political activities might be protected against criminal prosecutions.
Mr. Justice Stewart, I think made a point deciding when Brandenburg against Ohio was mentioned does not necessarily mean that the persons engaging in those activities protected against criminal prosecutions are proper to admissions to the Bar and I wish to suggest that a reading of Keyishian and of Elfbrandt and Robel and Schneider against Smith which we have cited and quoted from in our brief suggest the contrary that those cases emphasized a point and in dealing with what we think with all due respect at least a sensitive and more sensitive occupations and membership of the Bar, namely work in a defense plant, work as a teacher with the young, work on in a merchant marine and in all of those cases the Court has said that these are constitutionally protected activities and the constitutionally protected activities cannot be a ground for disqualification from employment. Now, our submission here and I don't think it has been fully argued obviously on this argument I can't argue with fully either is that the profession of the law is a profession where these standards are less applicable for the following reasons.
First, it is a lawyer is of course not an employee of the State and whatever power the State has over its employees should not be applied to the lawyer and we think to the aspirant lawyer.
The second is it is difficult to conceive precisely what function it is as a lawyer that would be adversely affected by a political viewpoint or to go with political activity.
It seems to us that there is a difference between the questions of a good private character, to go back to ex parte Garland phrase which we quoted in our brief and the question of a bad public character -- a question of a public character which is involved in the questions of conception of whether or not the State should be overthrown by force and violence to take the extreme situation.
In other words, the history of life in this country and in the world generally had shown that the most honorable persons have had conceptions and that sometimes attempted to carry up those conceptions into action.
In the political field, without in the slightest way reflecting upon their good character except when they have failed, I suppose, and without if there being any suggestion of the question of moral servitude and I think back specifically to the case of ex parte Garland where is through the Court based its decision on under the rubrics or on the principles of Bill of Attainder and of ex post facto law and yet in that case and in Cummings against Ohio we were dealing with the most serious of political crime.
We were dealing with matters described I think by Mr. Justice Miller's dissent as reasonable activities by Mr. Garland who, after engaging in the fight against the union on behalf of them sedulously, was admitted Bar here or retained his membership for the Bar, I should say and eventually became the Attorney General of the United States.
Now, In short --
Justice Byron R. White: At all permissible for a committee to ask an applicant to -- if he advocates assassination to right social wrongs?
Mr. Leonard B. Boudin: Well, I think --
I think, when we get to an extreme question of assassination Your Honor it's always one of those extreme problems that are very hard to answer.
Justice Byron R. White: Well then, make it more general, make it more general, do you advocate the general use of violence, violent means to achieve social and economic ends.
Mr. Leonard B. Boudin: I think the answer is, my answer would be consistent with point of view, I suggest that the committee could not ask that kind of question.
Justice Byron R. White: That is a wholly relevant to the --
Mr. Leonard B. Boudin: I think it is relevant, irrelevant to the practice of law.
Justice Byron R. White: You mean if the advocacy of violence, I suppose, you would say then that it would be wrong to ask the person, “Are you now engage in violent activities to rights or for wrongs?”
Mr. Leonard B. Boudin: I would consider that too, but of course we're really dealing here at the moment with three kinds of things, belief, association and advocacy --
Justice Byron R. White: How about my last question?
Mr. Leonard B. Boudin: I would even feel that as far as conduct is concerned that would be an improper question.
Justice Byron R. White: And certainly -- and certainly a fortiori just advocacy of violence.
Mr. Leonard B. Boudin: That is quite right Your Honor.
Now I will say that there is a -- in other words, I regard those as matters which may reflect upon the which -- matters which should be handled where we reach the point of danger to the community.
Handling the ordinary matters of due process by criminal trial I don't regard those as bearing upon the functioning of the lawyer as a lawyer in the process.
I think this is a very different situation for the policeman who was given a gun.
This is a question for the yesterday I think also and whom one would expect because he is given a gun to have a responsibility with respect to the use of the gun.
But I think that there must be a distinction between the function of a lawyer and his private capacity and the lawyer and his function as a lawyer.
Justice Byron R. White: (Inaudible).
Mr. Leonard B. Boudin: Well, I think --
Justice Byron R. White: (Inaudible)
Mr. Leonard B. Boudin: Well, the difficulty is that I am going to answer your questions directly, I hope, but the difficulty is Mr. Justice that we really are not dealing in reality in this field if we analyze the last 20 years with the questions of anarchism or the question of actual violence, we are really dealing --
Justice Byron R. White: Well, I am just trying to (Inaudible)
Mr. Leonard B. Boudin: Well, I would say that even question would respect violence.
If one is talking about advocacy of violence, I'm not talking about conduct yet. Conduct I think if it reaches a point where it's punishable, where it's outside the First Amendment protection and most conduct is of course, then it would be punishable.
Justice Byron R. White: (Inaudible)
Mr. Leonard B. Boudin: Well, that would come in to the question of what a lawyer would advice a client.
I think we're moving into a different area.
I was dealing with a lawyer as a citizen and as I was about to say -- it is very high as I say to hit the extreme situation.
I think we have to recognize that what we are dealing with here, we're dealing with this whole question of membership in organizations having political philosophies because that's what these questions are dealing with.
We really aren't dealing with the extreme situation of conduct.
Justice Byron R. White: (Inaudible)
Mr. Leonard B. Boudin: Well, I think -- I think it's a closer question when we get to the overlapping and to the conduct but I really think that all of these questions Your Honor, if we're talking within the framework of the reality, are questions that are concerned with membership with organizations which have particular political points of view.
We are really never coming down to the question -- nobody ever asked, you are or did you engage in violence, the kind of question put by Your Honor.
But we're always dealing with is, “Are you a member of an organization which has for its purpose, which has the literature behind it advocating the overthrow of the Government by force and violence?”
Because I think your question is a very difficult one when I get down to the question of the actual conduct.
Chief Justice Warren E. Burger: Did I get the impression Mr. Boudin that you thought some of these types of questions might be appropriate to ask a candidate for the police force but not appropriate for the lawyer?
Mr. Leonard B. Boudin: Yes, I do think so Your Honor because then I thought that he had a particular responsibility and a particular danger and that it was his job to enforce the law.
Chief Justice Warren E. Burger: Then you would -- it seems to follow the map that you place the policeman's responsibility on a higher or lower plane.
Mr. Leonard B. Boudin: No, just different that is that the policeman has to do the law enforcement and I consider the lawyer as a matter of fact very often a boardwalk between his client and the Government in reality.
In reality, there's no point am I giving Your Honor the headspring of this thing.
I think it's a difference of function, not one that is higher or lower but I would like because I recognize the difficulty of -- part of this argument, we move to the point suggested by Mr. Justice White pertaining to the particular questions here so as the question here I think clearly for under what this Court has called the rule of precision in the First Amendment cases and clearly are in conflict with the decision of the statutory court which while we have felt that it has not gone so far enough as witnessed by jurisdictional statement in the LSCRRC case we agree with the dissenting opinion of Judge Motley the dissenting occurring opinion are nevertheless one that would call the Court's attention to this particular case.
The questions that we have in this case questions two and three those dealing with all organizations are questions which the Court has really held improper in Shelton against Tucker.
It held that they go so far as to discourage all political associations.
Political association that is completely legitimate.
And Judge Friendly pointed out Your Honors will see in the appendix in this case Judge Friendly pointed out that the New York Court, I think Mr. Justice Harlan probably was aware of that same questions that was put earlier had withdrawn such question with respect to membership at all organizations and at withdrawing them because of what Judge Friendly said the awareness of the need to bring them in line with developing concepts of First Amendment rights and he referred specifically to Shelton against Tucker and Schneider against Smith.
Now, question number one the question relating to membership in an organization advocating the overthrow of the Government has defects that I think were recognized in some of the questions here and that Judge Friendly pointed out, they omit the absence of knowledge concerning the purposes of the organization, they omit the absence of congruence that is membership at the same time that the organization had these purposes.
In addition to the two points made by Judge Friendly, which resulted in New York changing its question to import, to include these two elements.
We suggest that the elements involved in Brandenburg against Ohio was suggested by that namely a specific intent to advance the purposes of the organization with which one and which one is a member are elements that also should be called for in a question of this kind.
And our concern of course is the fact --
Justice John M. Harlan: Am I not right in taking that Judge Friendly upheld the question and so far as the absence of any aspect of knowledge with respect to the Communist Party -- do you upheld that question?
Mr. Leonard B. Boudin: The question of the Communist Party was not involved in the New York questionnaire specifically.
And as I say, this Court had made its decision which we would hope it would reconsider on Communist Party.
Justice John M. Harlan: -- sustains that kind of a question.
Mr. Leonard B. Boudin: It does now --
Justice John M. Harlan: The question there is whether with the passage of time and so forth the element you are arguing before this Court held unnecessarily there is something ought to be (Inaudible).
Mr. Leonard B. Boudin: Exactly, I am also suggesting one more thing Your Honor with respect to Communist Party questions which of course is not the question put here, it's a communist party question is a much more pointed question I'm suggesting that Your Honors' decision Mr. Justice Harlan in opinion and Barenblatt and the opinion in Gibson and perhaps the sound reasons because we are in the First Amendment area now, would indicate that perhaps even assuming that the Communist Party membership question can ever be put and this in the Court we're willing to reconsider whether it should be put.
That kind of a question should not be put in the absence of a foundation, some reason to believe that there's of course can make that particularly inquiry of an individual.
Of course, Your Honor stated that view in reference, in dealing with the question of a draft of that inquiry in Barenblatt in a different context.
But we're suggesting that the deterrent affect upon association here is one which would require that if even that question could be put it should be put --
Justice John M. Harlan: You're taking out an awful great suite of constitutional baggage here that you don't need to prevail in this case.
Mr. Leonard B. Boudin: I must admit that I think that my case could won very easily on the basis of --
Justice John M. Harlan: Well, I thought you are arguing your lawsuit.
Mr. Leonard B. Boudin: Well, because I think that the public problem is quite important and I know that this Court could say not only with the case that I'm bringing here but with the general impact upon membership at the Bar.
And my concern is that the large amount of activities which the Court knows young law students are engaging in today activities in the south, activities with the poor, activities with minority groups, a panoply of activities are going to be discouraged and undiscouraged if questions this kind are submitted to be put.
Justice Byron R. White: You really think that?
Mr. Leonard B. Boudin: I really do think so, Your Honor.
When I argued this matter before the statutory court these Judge Bonsal raised a question. He sounded skeptical also but I may say that if Your Honor will see the array of the opinion in LSCRRC.
The Court eventually recognize that what I have said what the reality thought was we who stand here you who stand there are not as close to these young law students who are engaged in worked in vengeance and even I who have been involved with so many of these cases in the last decade are now regarded as old had as conservatives.
Chief Justice Warren E. Burger: Well, what is the work in the prominent program or the office of economic opportunity got to do with organizations advocating the overthrow of the Government by force and violence?
Mr. Leonard B. Boudin: Well I think one of the -- because Your Honor the distinction is the people who worked among the poor or who works among minority groups are also in fighting against authority I'm using the word fighting at a general sense.
They are regarded as dissidents, they regarded as radicals and if I can suggest Your Honor well I have forgotten to mention here, Your Honor will notice in our briefs what happened when Mr. Stolar appeared before the committee and what the committee said to him.
They're not after having gone through this and the applicant's waiting to answer these generalized question of the fact of nature, Your Honors will see on page six of my brief that the committee pressed him into specific questions and answers and that eventually he answered that he had -- and these are the words from the committee “that he is not now and has never been a member of the Communist Party or any socialist party or of the students for a democratic society and that he has signed the standards of the United States preinduction army oath with respect to a list of organizations on the Attorney General's list.”
In other words, the people who are engaged in work generally and who are members of the student organization after another are met by this kind of specific inquiry under Ohio's program and what reason is there that they should be asked, that a student should be asked whether he is a member of any socialist party.
All of these arises as I say in the context of Ohio's program and all of these is bound to discourage young men from joining organizations, from joining student groups and what we are doing ultimately is we are letting the decisions to be made in these things as they must be made I suppose by character committees who makes for into First Amendment protected activities here and who live in a milieu which is so different from the young men who are in the law schools today and I have talked that recently in the law schools I have been amazed in the different quality of the laws students that exist today than those who existed even 10 years ago.
And these students should not be discouraged by questions that are of this kind and that are put by Ohio as to whether they are members of The Students for a Democratic Society assuming there is such a single organization today.
They should not be discouraged by asking whether they are members of a Socialist Party.
All of these arises and arises in the context, Your Honors will know, that nobody has made any determination such as the Court suggested in a different context that I think applicable here in Joint Anti-fascist against McGrath, a determination that an organization is an organization which one should not belong to.
It gives a freewheeling suite to the committees to make this inquiry.
Now, with respect to the Communist Party although I have suggested that ought to be, should be reconsidered by the Court, the Court has pointed out repeatedly legislative findings, legislative hearings, judicial hearings and so forth.
But with respect to matters other than the Communist Party, then it certainly seems to me that somebody must have a hearing to determine whether an organization is on a particular, should be on a list.
If list had to be permitted before we are to give committee the right to ask questions concerning that.
And of course, when we ask questions concerning any organization you're even going beyond what the Court did at Schneider against Smith when they talked about 250 organizations and are referred to the concurring opinion in that case of Mr. Justice Fortes and Mr. Justice Stewart.
Chief Justice Warren E. Burger: Were these, just one question, Mr. Boudin, if I may. Were these questions formulated by the Supreme Court of Ohio or by the Ohio State Bar Association's Committee or by the Columbus Bar Association?
Mr. Leonard B. Boudin: I do not know, perhaps the Ohio can say. As far as we know that these are the forms used and I suspect --
Chief Justice Warren E. Burger: State wide?
Mr. Leonard B. Boudin: By the states, I suspect used by the character committees in many states in the last 15 to 20 years not before, this is something new.
Chief Justice Warren E. Burger: Mr. Macklin, you may proceed whenever you're ready.
Argument of Robert D. Macklin
Mr. Robert D. Macklin: Mr. Chief Justice and may it please the Court at the outset, it should be understood that the rules of the Supreme Court Of Ohio with respect to the Administration of Bar Admissions place no burden upon the applicants approved his good moral character.
Procedures actually one of the investigation performed by the admission's committees of some 89 Bar associations throughout the State.
There's a sort of a student profession under the Ohio Supreme Court and the procedures of the Bar Association Committees are provided by rule of the Supreme Court of Ohio.
Committees are responsible for investigating the character, reputation, and the moral qualifications of the applicants and to report their findings and their recommendations to the Court which in the ultimate result determines whether the candidate shall be in the first instance, registered as a candidate for admission to the practice of the law or in the second instance, whether he should be permitted to take the Bar examination. One process proceeds to the other.
Each step of the procedure requires on the part of the applicant the submission of the character questionnaire which is utilized from the Local Bar Committee in performing its investigation.
In all the phase of the form the applicant is advised that the information may be used is a guide to further investigation.
Justice Potter Stewart: There are two, one beginning on page 5A on the record in the appendix and the second one beginning on page 14A in the appendix.
Mr. Robert D. Macklin: That's correct Mr. Justice.
Justice Potter Stewart: And now who formulated this questionnaire?
Mr. Robert D. Macklin: It's my understanding that this questionnaire was formulated by the Supreme Court of Ohio.
Justice Potter Stewart: By Court, it's the Supreme Court?
Mr. Robert D. Macklin: Yes, Your Honor.
Justice Potter Stewart: And for the use throughout the State and all 88 counties?
Mr. Robert D. Macklin: Yes Your Honor.
The various Bar Associations from time to time make recommendations to the Supreme Court for changes in its rules affecting this, the admission procedure but to my knowledge there has been no change to the format of the questionnaires at least for the past five years.
Justice Potter Stewart: So, it's not incumbent upon each one of the 88 or you said 89 committees to formulate its own questionnaire to do its job?
Mr. Robert D. Macklin: No Your Honor.
It is incumbent upon the committees to further the information that they obtain from these questionnaires.
As an applicant from other State, the petitioner was -- did not require registration as a law student but the petitioner submitted both forms simultaneously.
When he sought permission to take the Bar examination and the reason for this of course is the second questionnaire is primarily designed merely to bring up to the basic information provided for in the first questionnaire.
The petitioner refused to answer two questions on the first questionnaire, one dealing generally with membership in organizations and the other is to whether he was a member of an organization which advocates to the overthrow the Government of the United States by force.
This refusal was based on this right as guaranteed by the Fifth Amendment of the United States Constitution.
On the second questionnaire which--
Justice Potter Stewart: I don't quite understand why you have to fill up the first questionnaire.
Because the first questionnaire I think as you have told us was for law students and he and it's dated there December of 1968 and he even graduated from law school on June of 1968.
Mr. Robert D. Macklin: That's quite correct Mr. Justice Stewart.
Justice Potter Stewart: So, why was this applicable to him at all?
Mr. Robert D. Macklin: This is applicable as a matter of practice on the part of the Ohio Supreme Court itself for obtaining the basic information.
If you were to study the questionnaire design for admission at the Bar, you will find that it really merely supplements the basic information obtained in the first instance.
And the Ohio Supreme Court treats both questionnaires as a complete application.
On the second questionnaire, the petitioner refused for the same reason as on the first questionnaire to answer a question about the membership in club, societies or organizations since the period registered as a law student.
After being duly warned, duly warned of the effect upon the investigation of a failure to answer these questions, the petitioner persisted in his refusal to answer and based upon this refusal, the Bar Admission Committee recommended to the Supreme Court of Ohio that the petitioner's application for admission to the Bar examination be denied.
The Supreme Court of Ohio approved the recommendation of the Admissions Committee and denied the application of the petitioner to be admitted to the March 1969 Bar examination.
Petitioner has not raised an issue any quarrel with the right of the Supreme Court of Ohio to determine the qualifications of those who they would admit to the Bar including the moral fitness of such persons or such person who is to be entrusted with the faith of clients.
It follows, therefore, that the Supreme Court of Ohio does have a legitimate interest in investigating the moral character of its applicants.
They consider it hand-in-hand a part or in parcel together with the technical qualifications for the admission to the Bar.
And pursuant to this purpose, it must be appropriate to allow the Court to inquire into associations to the extent that the information acquired thereby maybe an aid of such legitimate purpose.
The function of the higher questionnaire, both questionnaires for that matter, is to provide the basic information as a guide in conducting the investigation of applicants nothing more.
There's no political test involved, there's no oath of loyalty involved, and there are no prescriptions in mere membership in any organization.
Now, the first of the petitioner's argument in this aggregate effect is really a conjecture as to what the Supreme Court of Ohio might do with the kind of information it seeks on these questionnaires.
Not what it has done but what it might do.
We submit that it would be unfair to determine this case on the basis of the mere possibilities or potentialities of action by the Supreme Court of Ohio.
Surely, one may not presume that the Supreme Court of Ohio is not acutely aware of the decisions of this Court which are so carefully circumscribed areas of improper infringement by the States upon the First and Fourteenth Amendment rights.
Justice John M. Harlan: How long do we say to the questions hereon that there are recommendations (Inaudible)?
Mr. Robert D. Macklin: We don't feel --
Justice John M. Harlan: Specifically, what do you do, what do you say, how does this case incorporate (ph)?
Mr. Robert D. Macklin: Well, Mr. Justice Harlan we look upon disclosure of these associations as simply an entree into the ability to discuss with all the members of these associations whether or not there are aspects of this person's character, his moral fitness which may or may not have a bearing upon his fitness for the Bar.
It's strictly a matter of inquiry or investigation and nothing more.
We have no history to my knowledge in the state whereby a mere association or mere membership within an association has resulted in an applicant being denied permission to take the Bar examination.
Justice Byron R. White: Can you suggest that this question is primarily directed at enabling an inquiry about the man at the organizations or among the members of the organizations that he was a member?
Mr. Robert D. Macklin: Members of the organizations and the associates whom he may have worked within the organization.
Justice Byron R. White: That maybe a fairly easy question for a man when he is 25 that's a -- when he gets to be 45 that gets to be a more difficult question to answer.
Even if his memory hasn't failed by that time perhaps joined some but he can't remember them all.
Isn't that pretty difficult burden to put --
Mr. Robert D. Macklin: Well, it may be but if there's no dissent intent to deceive upon his part by excluding some organization with purposes to mislead the Bar Associations and their examination, I can't think that an innocent exclusion would militate against his acceptance.
I note that most -- I have been a member of this Admissions Committee, as a matter or fact I am a former chairman and I can recall that some applicants even included the Book of the Month Club which I didn't think was necessarily a bad association.
Chief Justice Warren E. Burger: But the question because of its breadth has a tendency to elicit that kind of an answer in the exercise of the carrier that would be duly this kind of an application.
Mr. Robert D. Macklin: It's quite likely.
The Ohio we think that the application of the principle of the second Konigsberg case is uniquely appropriate here.
The effect of acquisition was pointed out to the petitioner when the investigating committee warned him of the consequence of his refusal to answer.
More importantly, the investigating committee has before it a similar questionnaire filled out by the petitioner in applying for admission to the practice of law in the State of New York just a month before he made application to the Ohio Bar.
In that application, he answered the following question, “State whether you have been or are a member of any party or organization engaged in propagating or pledge to affect changes in the form of Government supported by the United States Constitution or in advancing the interest of a foreign country.
If so, state the facts fully.”
Justice Hugo L. Black: Where is that in the appendix?
Mr. Robert D. Macklin: I beg your pardon.
Justice Hugo L. Black: Where is that in the opinion?
Mr. Robert D. Macklin: That is -- it's contained Your Honor in our brief in opposition to our petition for writ of certiorari that's contained on pages 17A and 18A in the appendix there too.
The petitioner responded no to this question.
Justice Thurgood Marshall: Are there general requirement that (Inaudible) the organizations that he ever belonged to?
Mr. Robert D. Macklin: I don't know that it does sir, but it touches on a great many others.
I don't believe that New York has a type of question exactly like the one on Ohio with regard to the associations.
We really felt in Ohio, that where the applicant or the petitioner had answered this similar question at least it has similar elements and to those which refused to answer in Ohio on the basis of his rights as guaranteed by the Fifth Amendment but he thereby created an area of at least let's say perplexity on the part of those who were charged with the investigation of this moral character.
The question of course would be, “Had something occurred in the intervening (Inaudible) that would cause his answers to the Ohio questionnaire to be possibly incriminating?”
It may well be reasonable to logical explanations but the refusal of the petitioner to answer left a complete void in this particular area of the investigation being performed by the Admissions Committee.
The members of the Admissions Committee were literally unable to complete the full investigation and they could not logically make any recommendation to the Supreme Court of Ohio as to the moral qualifications of the applicant.
We contend that there was no reasonable alternative to the action of the Supreme Court of Ohio in denying the petitioner's application.
We submit that the circumstances of this case which offered inconsistent statements bring the fundamental issue squarely within the principles of the second Konigsberg case.
Justice Hugo L. Black: Does the applicant have to swear to this taken oath?
Mr. Robert D. Macklin: Yes, Your Honor, he does.
Justice Hugo L. Black: For which he could be punished for perjury?
Mr. Robert D. Macklin: Yes, Your Honor.
Justice Hugo L. Black: It might be a little difficult, wouldn't it?
To be able to swear where there's some organization believe in overthrowing the Government by force, I don't think there have been many of them.
Would that be an issue to be tried in the perjury case under your questions?
Mr. Robert D. Macklin: I suppose --
Justice Hugo L. Black: If he swears it means he does not belong to any organization that believe an overthrowing the Government or have that advocacy by force and violence and that would be an issue in a perjury case, wouldn't it?
Mr. Robert D. Macklin: Mr. Justice Black, I think it possibly would be but I conceive of it, it could possibly be.
Justice Hugo L. Black: Well, it would be, wouldn't it?
That's what he's swearing.
Mr. Robert D. Macklin: Yes, but I think in addition of this you would have to show that he had an intent to deceive or to answer incorrectly.
Justice Hugo L. Black: But I'm not talking about the intention to deceive.
I'm talking about whether he belonged to any organization that believes on the overthrowing the Government by force and violence.
And he swears to that, one of the incidents would be, whether he belonged to an organization which did that and wouldn't that make that issue open when the case of trial by perjury.
Mr. Robert D. Macklin: Yes, I would agree with you sir.
Well, the fact -- we felt in this particular case is even more appropriate to the principles of the Konigsberg and Anastaplo cases, we would urge that this be the controlling point from the standpoint of our State and we respectfully urged this Court to affirm the decision of the Supreme Court of Ohio.
Chief Justice Warren E. Burger: Thank you Mr. Macklin.
I think you have about -- I think your time has expired, yes.
Thank you, Mr. Boudin for your submission.
Rebuttal of Leonard B. Boudin
Mr. Leonard B. Boudin: Thank you.
Chief Justice Warren E. Burger: Thank you, Mr. Macklin, the case is submitted.