LAW STUDENTS RESEARCH COUNCIL v. WADMOND
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Norman Dorsen
Chief Justice Warren E. Burger: We’ll hear arguments in Number 49, Law Students Civil Rights Council against Wadmond.
You may proceed whenever you’re ready Mr. Dorsen.
Mr. Norman Dorsen: Thank you very much.
Mr. Chief Justice, members of the Court.
This is a third in the succession of Bar admission cases that the Court has been hearing.
It’s an appeal from a decision of a three-judge court to the southern district of New York.
The suit in this case was an affirmative suit brought by three law students, three applicants to the Bar of the state of New York and three organizations, including a Law Students Civil Rights Research Council, challenging the constitutionality of certain statutes and statewide judicial rules governing the admission to the New York Bar.
In addition, the complaint made similar allegations concerning the implementation of the statutes and rules through questionnaires, affidavits, interviews and other practices I shall describe shortly.
A majority of the three-judge court below, Judges Friendly and Bonsal granted the appellants partial relief, but upheld its challenge statutes and statewide judicial rules.
Judge Constance Motley, in an extensive dissenting opinion, took the view that the principle portions of the majority opinion were erroneous and she would have broadly declare unconstitutional one New York statute on its face, and the other as applied.
It’s important for an understanding of this case to perceive the type of personal and political screening program that takes place in the State of New York.
The statutes and judicial rules that are relevant are set out in the appendix to the brief for appellants, starting on page 1a.
Section 90 of the New York judiciary law provides, “the admission to and removal from the practice by the appellate division takes place when the appellate division and the State Board of Law Examiners are satisfied that each person who passes the bar exam, possess the character and general fitness requisite for an attorney and counselor at law.”
Rule 81, immediately underneath Section 90 on page 3a of the appendix provides, this is an implementing rule that has the effect of a statute, “that each applicant to the bar must produce before a committee a character and fitness evidence that he possess the good moral character and general fitness requisite for an attorney.”
On the facing page, page 2a, is Rule 9406 which provides “that no person shall receive a certificate from any committee, any bar committee and no person shall be admitted to practice as an attorney unless he shall furnish satisfactory proof to the effect among other things that he believes in the form of the Government of the United States and is loyal to such Government” and there are three other requirements including citizenship and residence.
Now, these standards for admissions in the State of New York are implemented by a complex procedural mechanisms that delves deeply into the political and personal lives of each applicant.
I shall be more specific about this later.
It will suffice to say now that each applicant must answer extended questionnaires that raise questions regarding every aspect of his life.
Secondly, there are so-called home life affidavits which must be submitted to the bar committee by persons who know the applicant personally and have visited in his home.
Third, there are independent investigations that take place, including inquiries of the applicant’s school and draft board, his former employers and to police and other agencies, as well as the general public through publication in the New York law journal.
Finally, after all the information is reviewed by a committee member, a personal interview takes place.
If there is nothing unorthodox about an applicant, the interview will be perfunctory and admission will follow almost automatically.
But if there some unorthodox political activity or associations, there is an intensified investigation, new interviews, new questions and sometimes a delay in admission at personal and professional cost to the applicant.
All these takes place at a low level of visibility, but the effect on the constitutional rights of the applicant is destructive.
First, it involves an unwarranted intrusion broadly into their political and personal privacy and secondly, it inhibits the exercise of First Amendment rights by law students and applicants because of a fear of delay in admission.
All this is destructive to them, it’s also destructive to the national interest as I shall try to --
Justice John M. Harlan: Is this questionnaire used in all departments?
This is the second department.
Mr. Norman Dorsen: There are -- this case involves the second department and the first department, but there are questionnaires in all four departments.
Justice John M. Harlan: And of the same character?
Mr. Norman Dorsen: Very similar.
The three-judge court below unanimously agreed in an opinion by Judge Friendly that certain practices of the bar committees were invalid.
They held question 27(a), which ask applicants, “Do you believe in the principles of the form of the government of the United States to be impermissibly vague and overbroad?”
It held question 26 also invalid.
That question dealt and currently deals with membership in organizations advocating overthrow of the Government by force and violence.
Judge Friendly held that the question is at formally provided was invalid because it did not require knowledge by the applicant of the illegal purposes of the organization and there was no requirement that the illegal activity of the organization be coincident with the membership of the individual.
Finally, Judge Friendly held invalid question 31, which formally inquired whether there was any incident in your life, the life of the applicant, that was called for by the forgoing questions on the questionnaire, which has any favorable or detrimental bearing on your character or fitness and Judge Friendly held that this kind of soul-searching question was too broad and he struck it down.
At the same time, the defendants themselves deleted certain questions from their questionnaire and what Judge Motley termed the tacit confession of error.
These extremely broad questions, which are found on page 183 of the record, dealt broadly with membership in organizations and societies that the applicant may have joined before and during law school and extra curricular activities that he engaged in or may have engaged in while a student, but the majority below upheld the two relevant New York statutes and the implementing questions.
We have many objections, both to the statutes and the questions and the implementing procedures, but they boil down to two principle points.
The first point is that Section 9 -- Rule 9406, which is on 2a of the appendix, and the implementing question, question 27, are invalid because they compel a declaration of belief and are impermissibly vague.
Second, that Section 90 of the judiciary law, the good moral character standard, which incidentally we do not dispute on its face because we accept Judge, Justice Frankfurter’s for this formulation of the good moral character standard as Mr. Boudin stated yesterday from the Schware case.
But we do maintain that Section 90 has been invalidly applied because it’s been used to test the political ideas of the applicants that are protected by the First Amendment, both because of the invalidity of the revised question 26, which is found in page 6a of the appendix and because of the impermissibly broad pattern of investigation into protected activity that the bar committees undertake.
Now, before turning to my first point, I would like very briefly to make four preliminary comments that are central to an understanding of our position.
The first concerns the deterrent effect on a political activity of students.
I have seen this for 10 years at New York University law school.
This is not an imagination, this is not a product of anyone’s imagination, it is not a chimerical allegation.
There are students who are deterred from political activity.
There are professors who tell students not to engage in political activity until they’re members of the Bar.
Some of the most responsible students, some of the best students are deterred from lawful political activity.
Many of these students and the families of these students have gone to great extent to put them through law school, even a delay of a few months in earning a living is relevant to the prospects of their families and their own prospects.
The two cases that are cited in the brief, the cases of Messrs Rosenberg and Kaimowitz are examples of people who have been delayed by the character committee for engaging an undoubted political activity.
Secondly, nothing that is being urged here in any sense is inconsistent with the ability of the bar and the courts to discipline improper conduct of applicants or members of the Bar.
Mr. Boudin has reviewed four different types of sanctions that are available and I shall not repeat them, but I will deal with one other aspect.
Every one of us is concern by violence, everyone of us is concern by disruption in courtrooms.
In my experience, the bar associations of this country are able to respond to this problem in a constitutional manner.
The ABA has setup a special committee under Judge Murray and who’s a member of the District Court in the First Circuit, to set standards for behavior by judges, by lawyers, by spectators and by defendants.
That committee has already issued a preliminary report.
The bar association of the City of New York has setup a special committee with men like Bruce Bromley, Best Webster, George Lindsey and Burk Marshall on the committee to look into the same matter.
I have the privilege of being the Executive Director of that study.
The bar association has not been delinquent.
The bar associations of this country are able to deal with conduct that is impermissible, conduct that deserves the sanction of either the Bar or the Court.
But this is not conduct we’re dealing with here, it’s the delving into protected political activity.
Third, none of the criticisms of the statute, none of the criticisms of the questions, none of the criticisms of the practices that we’re making here are meant in a slightest to impute a good faith, the integrity of the members of the bar committees, the members of the Courts of New York or any other State.
These men are operating under a system that was handed to them.
They are doing their very best to implement that system, but it’s a system that was setup without full consciousness of the First Amendment problems that are raised.
I want to repeat, we’re not criticizing individuals, we’re not suggesting that there’s a certain venality or arbitrariness on the part of particular people or committees.
But the fact of the matter is a structure has been setup that’s improper and it should be dealt with.
Justice Potter Stewart: Does the record show the history of these questions to which you deal?
Mr. Norman Dorsen: The record shows the history --
Justice Potter Stewart: Other than when the structure was setup and why?
Mr. Norman Dorsen: The history shows -- the record shows the previous questions that were asked and the present questions.
The New York’s system was setup in 1921.
It traces back to 1921 -- questions of this time --
Justice Potter Stewart: That is a whole of character --
Mr. Norman Dorsen: But this kind of investigation.
Justice Potter Stewart: But this -- the record doesn’t show the particularized history of these particular questions?
Mr. Norman Dorsen: It does not.
It does not Mr. Justice.
The final preliminary point I would like to make is there’s no need for this Court to overrule the Konigsberg and estoppel cases to deal with the invalid statutes and practices here.
The question in the Konigsberg was a different kind of question from the question that is being asked of the applicants in New York.
The foundation for the question as Mr. Justice Harlan pointed out in both opinions in those cases had been laid and the committee was trying to fill in gaps.
There are no gaps here, there is no foundation here.
We’re dealing here with questions that are being asked of every single applicant to the New York Bar.
The entire generation of lawyers, they are going to have deal with the problems that all of us are dealing with at the present time.
And finally, Konigsberg and estoppel are distinguishable of course, because the governing constitutional principles that have evolve -- have been evolved by this Court have changed in last decade.
It’s exactly decades as the Konigsberg case was argued in this Court.
Now, what I would like to do is deal with the first principle point that I alluded to earlier, namely Rule 9406, which is found at page 2a of the appendix.
And here we have a rule which is of statewide applicability and has the force of the statute that whatever the doubts may have been in the Arizona case that Mr. Justice White raised, this is a belief question.
It is clear that each person who wants to be a member of the Bar must furnish satisfactory proof to the effect that he believes in the form of the Government of the United States and is loyal to that Government.
And there are many expressions by members of this Court.
Mr. Justice Robert’s memorable quote was referred to yesterday by Mr. Justice Black.
Mr. Justice Jackson on another occasion expressed what seems to me the most cogent terms, the reasons why belief is absolutely inviolable.
Justice John M. Harlan: You think that the oath that you heard these applicants who are admitted and are barred today thought to have raised these questions (Inaudible)?
Mr. Norman Dorsen: No I did not.
The constitutional oath that was raised in the Knight case, it was affirmed pre curiam by this Court, we have to objection to at all, but this is not that case.
This deals with belief and as Mr. Justice Jackson said, “I know of no situation in which a citizen may incur a civil or criminal liability or disability because a Court infers an evil mental state where no act at all has occurred.
Attempts of the Court to fathom modern political meditations would be as futile and mischievous as the efforts of the infamous Heresy trials of old that fathomed religious beliefs.
Chief Justice Warren E. Burger: Do you think Mr. Dorsen, in response to that question if the applicants strongly oppose to the present provisions of the Constitution for the electoral system of selecting President that his affirmative answer that he did believe them while entertaining that reservation about the electoral college would -- well I’ll ask what consequence would that produce in your view?
Mr. Norman Dorsen: That -- I think that’s a very, very basic question and our second objection to this standard is that’s impermissibly vague.
It talks about the form of the Government, a form of the Government of the United States.
Does this mean the electoral system?
Does this mean the capitalist system?
Does this mean the federal system?
The Center for Democratic Studies under Mr. Hudson (ph) has recently proposed a new Constitution, which would divide the country into regions, which would give different powers to the Supreme Court.
That would certainly change our form of Government.
Does an applicant to be in a position where he has to guess if he has unorthodox political views as to what the form of Government of United States really is or what a judge or jury might consider it to be and Judge Friendly dealt with this point.
He said that it was wrong and improper to inquire of an applicant as to whether he was loyal to the principles underlying the form of Government.
He did not explain why the same objections did not apply to the slightly shorter formulation, but it seems to me indistinguishable formulation, a form of Government of the United States.
And Judge Motley in her dissent raised this very question, and as far as I know there’s nothing in Judge Friendly’s opinion which satisfactory deals with this issue for the very reason suggested by the Chief Justice.
Now, the State says that Section 9406 is really like the constitutional oath that Mr. Justice Harlan raised in connection with the members of the Bar who just admitted that one will support the Constitution of the United States.
But that’s not what this says.
That’s just not what it says.
There’s no warrant to revise this formulation in light of what would be a constitutional formulation especially is this true in light of question 27, which implements this section and says among other things, “Can you conscientiously and do you affirm that you are, without any mental reservation loyal to and ready to support the Constitution of the United States?”
Now, the “without any mental reservation” clause is certainly a belief clause.
Mental reservation -- a man may have a question about the bicameral system, about one man one vote, about whether or not in this modern age we need Regional Government rather than State Government.
Now, this section or this Rule 9406, the implementing question are invalid for a wholly distinct reason and that is under Speiser and Randall, it impermissibly places the burden of proof on the applicant.
Judge Motley said on her opinion that this was the very heart of the case and the reason Judge Motley thought this was the very heart of the case is spelled out fully in Justice Brennan’s opinion in the Speiser case.
And that is that the hazard of mistaken fact finding is so great and a potential loss to the applicant and the law student is so great that he will steer far wider of the unlawful zone if he has the burden of proof.
Now in its brief, the State attempts to avoid the thrust of Speiser without even mentioning the case by saying that there’s a distinction between coming forward with evidence, the burden of initial coming forward on the one hand and the burden of ultimate proof on the other.
It seems to us that this is an inadequate answer.
In the first place the language of Rule 9406 says explicitly that the applicant must furnish satisfactory proof.
The burden of proof is built in to the section.
Secondly, the practical implementation of this section in New York as both the Kaimowitz and the Rosenberg cases which are cited incidentally on page 10 of the brief in opposition to the motion to affirm show that the way the mechanism works and very naturally works is that when there’s a question about an applicant, as the gentleman from Ohio said a moment ago, more questions are asked until the Bar Committee is satisfied.
And of course, under Section 90, at the top of page 3a of the Appendix, it says that the State Board of Law Examiners must be satisfied.
Now, that’s burden of proof language and I might add that despite what New York says here, in the Konigsberg opinion itself at 366 US, page 41 in the footnote, Mr. Justice Harlan lists New York State as among the states where the burden of proof is on the applicant.
So, it seems to us that apart from the defects that are inherent in the rule and the implementing question, the burden of proof problems that are raised by Speiser and Randall are all together supportive of our concern.
Justice John M. Harlan: Have you got any figures as you can see the papers that goes with this as to how many applicants to the Bar have been denied admission since this questionnaire (Inaudible)?
Mr. Norman Dorsen: The one case which deals with this is the Cassidy case which is cited in the brief and is unclear whether that person was denied admission because of a political matter or because of a deception that he played upon the committee.
The fact of the matter is that there were very few people who were denied admission to the Bar on political grounds, but that in no way it seems to me Mr. Justice Harlan --
Justice John M. Harlan: Are there any that you could --
Mr. Norman Dorsen: Well the Cassidy case was the one that would come within it.
But there are many cases -- there are many cases that we know of after a personal knowledge and a couple of them are decided, where there is a delay where people are prejudiced, where people’s careers are hurt not only because of the delay in getting a job, not only because of a delay of earning money but because of the notoriety, because of the unfortunate public publicity.
Justice John M. Harlan: Do you go as far as Mr. Boudin does to press the argument when he said that he’d like to see (Inaudible) that there should be no character committee examination?
Mr. Norman Dorsen: I do not believe there should be a character committee investigation that deals with advocacy or membership, or belief.
I believe that certain actions by an applicant maybe relevant certain unlawful actions or certain improper actions of a man that have been convicted of embezzlement from somebody or robbed a bank, or engaged in unlawful activity, I believe that’s a perfectly proper subject for the committee to delve into.
Justice Potter Stewart: How about Fifth Amendment?
Mr. Norman Dorsen: This case of course does not present that issue.
Justice Potter Stewart: Do you have any trouble with the Fifth Amendment -- asking a man if he’d ever robbed a bank?
Mr. Norman Dorsen: I think you’ll be entitled to raise that.
Chief Justice Warren E. Burger: Do you think then that the consequence should be that the Board can stop at that point?
If he takes the Fifth Amendment on whether he’s ever embezzled money from a principal when he acted as agent?
Suppose the question were that specific?
Mr. Norman Dorsen: I think that the Board would then be entitled to make its own independent investigation.
And I might say in the case that Mr. Justice Stewart and the Chief Justice are now putting, the particular objection that Mr. Boudin raised to the Fifth Amendment would be inapplicable because it wouldn’t be a case where the Fifth Amendment would be closely related to first amendment concerns.
And therefore the Fifth Amendment problem would not be as great in the first instance and in the second instance the committee certainly would be able to follow that up.
And I see no problem about considering that as relevant -- not the privilege against Fifth Amendment, but the unlawful activity of the individual should be considered relevant to admission to the Bar.
But I do not see why, I do not see why protected political activity, protected speech and certainly beliefs should be included within the ambit of relevant consideration, a permissible consideration by Bar and let me say that one of the chief reasons --
Justice Hugo L. Black: You mean by that that you think it would be all wrong to ask “Do you believe in committing a murder?
Mr. Norman Dorsen: Yes.
Justice Hugo L. Black: Do you have any of them asked that one yet?
Mr. Norman Dorsen: I have never heard that particular question asked.
But there are -- the questions that might be asked are questions concerning possible crimes.
Justice Hugo L. Black: Well now, you draw a distinction do you not between asking if they’ve been convicted and asking if they have committed robbery?
Mr. Norman Dorsen: That’s right.
If a man has been convicted that’s a matter of public record and that’s not incriminating.
I do draw that distinction.
Justice John M. Harlan: How would you say about a committee asking whether applicants of the Bar believed in courtroom disruption?
Mr. Norman Dorsen: I would say that’s an impermissible question.
Justice John M. Harlan: Impermissible question.
Mr. Norman Dorsen: Impermissible question.
I am against courtroom disruption, I believe all of us are against courtroom disruption.
When people engage in courtroom disruption they should be punished if it’s appropriate to do so by the proper bodies.
But this -- and I’d like to quote here from what Judge -- Justice Treanor said, “When an inquiry begins into advocacy” he said, “it’s a greedy camel and it does not easily take its lead.”
This is a very, very slippery slope to use the law school phrase, we begin asking belief about one thing, we begin asking belief about another thing and there’s no point I can see where a logical line can be drawn if once this line of questioning is opened up.
Justice John M. Harlan: Really, really what you are saying to make it concrete is, you can’t keep a man out of the bar unless you can show he has committed a crime?
Mr. Norman Dorsen: I wouldn’t go that far.
I wouldn’t go quite that far.
I would stop showing to that he’s committed activity which if a man had for example consistently broken up a courtroom and disrupted a courtroom and had never been convicted of it --
Justice John M. Harlan: Well, he wouldn’t get into a courtroom before he is admitted (Inaudible).
Mr. Norman Dorsen: No, I mean as an spectator, for example, as a law student.
If he’d engaged in activity that was -- that the committee properly found was inconsistent, irrelevant to being a lawyer, I wouldn’t go quite as far as you suggested Mr. Justice Harlan.
Chief Justice Warren E. Burger: But you might have that question up very sharply if a man were seeking admission having been admitted in another State where he tried cases and used disruption as a tactic of advocacy has been found in contempt and so forth.
Mr. Norman Dorsen: Quite right.
Chief Justice Warren E. Burger: Would you consider that a proper inquiry?
Mr. Norman Dorsen: Yes, I think I would.
Chief Justice Warren E. Burger: Then wouldn’t you think it’s alright to ask, “Have you ever been found in contempt or subject to any disciplinary proceeding or inquiry concerning that?”
Mr. Norman Dorsen: Yes, absolutely, Your Honor.
There’s one other point I would like to make.
Even more generally than the -- turning now to Section 90 in the implementing question 26, which I won’t deal with specifically, except to say that this question which Judge Friendly found invalid in his opinion is still invalid because it does not qualify membership by requiring active membership and it does not require, as the Scales case requires and it does not qualify advocacy by the standards of the Yates case namely advocacy to do something or the Brandenburg case to incite somebody as Brandenburg could.
Justice John M. Harlan: Those were all criminal cases?
Mr. Norman Dorsen: Those were all criminal cases, that’s correct.
But those are the standards that this Court set down as the standards for deterring speech and association.
Now more generally, more generally even Section 90 is invalid as applied because of the entire mechanism that operates that enables committees to roam at large over people’s belief.
In the Rosenberg case which I’ve mentioned earlier, it was discovered that Rosenberg had taken place in an anti-Vietnam War march.
And a committee member asked him during the investigation, “Why are you against the war in Vietnam?”
That’s a matter of public record.
The Kaimowitz case in which the applicant had engaged in a strike was also asked, “Why did you strike?
What was your reason for doing so?”
This is a bad business when questions of these kind --
Justice Hugo L. Black: Well, neither of those cases of before us though are they?
Mr. Norman Dorsen: That’s correct.
Justice Hugo L. Black: But they were disbarred on those questions?
Mr. Norman Dorsen: They were delayed, their admission was delayed and the specific point I would like to come to in closing is, that nobody should be delayed.
That nobody should be delayed, nobody should be prejudiced because delay, while not a serious as exclusion is also economic and personal prejudice until there’s a specific finding of probable cause by the committee based upon conduct -- based upon conduct in noting moral (Inaudible).
Justice John M. Harlan: Then I go back to something that I understand you were saying at the beginning.
I understood you to say that the effect of this very complicated questionnaire was really to suppress political beliefs, what’s proof of that?
Mr. Norman Dorsen: The proof of that is --
Justice John M. Harlan: Or what proof does the record show?
Mr. Norman Dorsen: The record only shows these two cases, the cases of Rosenberg and Kaimowitz.
But in many First Amendment cases there was -- let me put it in another way.
These questions inquire into protected political activity, as well as belief.
The natural effect of those questions is going to deter activity and as I stated at the outset I have seen it with my own eyes.
I have seen people --
Justice John M. Harlan: Well, I know what you’re -- after all it’s not in the record either. One can imagine those things don’t question your sincerity for the (Inaudible) but still we’re dealing with restriction and broad restriction you’re asking (Inaudible) long traditional system in New York and other places.
Mr. Norman Dorsen: Well, that’s correct that we’re asking that --
Justice John M. Harlan: Therefore, I would suppose if there’s some proof beyond the chilling effect?
Mr. Norman Dorsen: Well, the kind f proof we have is the kind of proof for example that the Court held satisfactory in Baggett and Bullitt and several of the oath cases.
The natural effect of questions of this kind which in many cases Cramp, Keyishian, Baggett, Elfbrandt are all cases where people -- where oaths were struck down based upon the same consideration.
Justice John M. Harlan: Would it be possible, would it be trustful, can you refer to a standing, any compilation that we could get to see how many people, since this questionnaire was introduced, have been refused admission on the basis of their character.
Mr. Norman Dorsen: The most extensive notes on this subject, which contained whatever documentation is available or in the Columbia survey on human rights and in the New York University Intramural Law Review, but the record does not contain the kind of evidence and the answer is that is the answer I think I’ve given, namely that in cases like Elfbrandt, Baggett, and the others, the chilling effect or the inhibiting effect was perceived and it’s here, and in my submission to this Court, I think it also should be perceived here.
Chief Justice Warren E. Burger: You’re suggesting really that we judicially notice that as a fact, even though it is not demonstrated in the record?
Mr. Norman Dorsen: I don’t state it as a fact.
I stated it as the basis of the precedence of this Court in both the belief and speech areas that dealt with virtually the same situation.
I am not asking the Court to deviate at all from the precedent that has been developed over the past decade and more.
Justice Hugo L. Black: The question was asked, I believe by my brother Harlan to somewhat this long practice, how long has it been questions of this kind were asked?
Mr. Norman Dorsen: In New York State, my understanding is perhaps Mr. Peck will -- Judge Peck will correct me, I think it goes back to the early 1920s, questions of this general character.
Justice Hugo L. Black: Well, not as elaborate.
Mr. Norman Dorsen: Not as elaborate as this --
Justice Hugo L. Black: What were they directed at then, what was the expected --?
Mr. Norman Dorsen: Well, after the First World War, as we know, there was a similar concern about Reds or the Attorney General Mitchell Palmer.
Justice Hugo L. Black: Did they ask him -- did they at that time asked about Reds?
Whether they were Reds? [Voice Overlap]
Mr. Norman Dorsen: I could not -- I could not answer that Mr. Justice Black.
Chief Justice Warren E. Burger: Thank you Mr. Dorsen.
Judge Peck, you may proceed whenever you’re ready.
Argument of David W. Peck
Mr. David W. Peck: Mr. Chief Justice, may it please the Court.
I’m not sure that it’s been made clear what the requirements of law and the questions are at the present time.
Mr. Dorsen has sort of gone around about what used to be questions, what was changed at one time or another, and what the Court changed.
I think it should be said that the appellate divisions of the State of New York in the first and second department have been extremely sensitive and conscientious, indeed on their own about these requirements.
As has been indicated there is a long history about these questions and requirements and originally they go back a good many years.
And nobody raised any questions about them.
But before these cases were started, the courts on their own, became concerned about historical record and whether it was up-to-date and modern.
And they went through the requirements and the questions and made substantial changes in them.
Then these proceedings were started and with the matters of complaint here, they looked at them again and made some other changes, before the matter ever got into Court.
And finally, as the third stage, the courts have had the benefit of the statutory court’s review of the procedures and it’s holding as to what was proper and what was improper.
So that what you have now is what I’m going to confine myself to.
I just like to say, preliminarily to that that my friend has said many times here, which there’s no support whatever in this record.
There is nothing to suggest that these committees roam at large over people’s beliefs, not when iota of a suggestion of anything of the kind.
They talk about what -- in their brief, about what happened in Rosenberg and Kaimowitz, there’s nothing in the record about it.
Suffice it to say, both Rosenberg and Kaimowitz which were admitted to the Bar and Mr. Cohen from Attorney General’s office tells me that he has personally gone over the records of the admissions and the first and second department and that no one ever has been refused admission to the Bar at the State of New York on so called “political grounds.”
Justice Hugo L. Black: That would be a pretty odd thing to state, wouldn’t it?
No one ever has been -- [Voice Overlap]
Mr. David W. Peck: I can only tell you that Mr. Cohen tells me that he is personally examined the records and states that to be a fact.
I wouldn’t think [Voice Overlap].
Justice Hugo L. Black: There was no touch of politics and any other?
No touch of inquiry into belief?
Mr. David W. Peck: Well, this is -- about exclusion, not having been admitted upon those grounds.
I don’t purport to say that he has gone through the record of every question that was asked by a character committee member, but he says that no one has been excluded on political grounds.
Justice Hugo L. Black: You mean expelled from the bar?
Mr. David W. Peck: No, the denied admission.
Justice Hugo L. Black: How many of you had?
Mr. David W. Peck: How many of we had Mr. --
Unknown Speaker: About 1500 a year, who are admitted without question?
Justice Hugo L. Black: I still think it might be pretty odd statement.
Justice Potter Stewart: How many are denied admission on any ground?
Mr. David W. Peck: Could you answer that Mr.--
Unknown Speaker: Probably less than 5 on average, per year.
Justice Potter Stewart: Per year.
And if nobody has every been excluded on the basis of the answers to these questions, what’s point of asking these questions?
Mr. David W. Peck: Well, that is a good question, I suppose, but I would say that the answer is that these are things that you should certainly know the questions as they exist today, things that you should certainly know, in my opinion, about an applicant for member of the bar.
To my thinking, I think it is fundamental, as to whether a man believes in the Constitution of the United States and is prepared to take an oath to uphold it.
I think without being facetious in anyway, Your Honor, it’s the same matter as to whether it’s the formality or reality for the members of the class here this morning, to take the oath.
We know that it’s done everywhere so far as I know for a public officer, for a judge, and a member of the Bar, who is an officer of the Court, I assume starts in this country, as distinguished from some other places in being willing to support the Constitution of the United States and I that it is fair, basic inquiry at the outset of a man as to whether he can conscientiously take that oath and whether he does take it in good faith.
Justice Hugo L. Black: I don’t think there’s anything into the question that we ask any of these members of the Bar that would begin to compare for the broad, expansive questions asked and the question now in the consideration, is it?
I don’t think we had it --
Mr. David W. Peck: Well, let me divide this into two respects, Mr. Justice.
There are really two requirements here, one that a man have of the moral qualifications to be a member of the Bar and the other is whether he can support the Constitution of the United States.
As far as the general moral character is concerned, I think that what the requirements are in the State of New York are no different in substance and the more simple form in this Court, where you call upon two members of this Bar to state that they believe a candidate has the qualifications, which according to the rules of this Court means that he appears to have good character.
Chief Justice Warren E. Burger: But we don’t make any inquiry in this Court, but we rely on state admission, do we not?
Mr. David W. Peck: That’s right, you do not make any inquiry, but you have laid down that as a requisite when a member of this Bar stands before this Court and makes the motion, he is representing that as far as he knows and he believes that this a candidate who has those character -- has that that character.
Justice John M. Harlan: A one man character committee?
Mr. David W. Peck: I think as Chief Justice has said Mr. Justice, this Court of course, has to rely upon the admissions machinery in the states.
But still, I think it is important that this Court has laid down the requisite that a man appeared to have good character, you are interested in.
You are concerned about it.
You do recognize that it is an essential to being a lawyer and should be an essential for admission to this Bar, which I submit recognizes the permissibility of that realm of inquiry at the State level.
Now, what does that inquiry consist of as far as good moral character is concerned? It consists simply of one thing in Rule 8 of the Rules of the New York Court of Appeals for Admission of Attorneys.
It says proof of moral character.
It says every applicant must produce evidence, not about a burden of proof, but be that as it may, must produce evidence that he possesses the good moral character and general fitness, requisite for an attorney and counselor at law, which must be shown by the affidavits of two reputable persons.
Justice Hugo L. Black: I don’t believe that's under attack here, isn't it?
Mr. David W. Peck: I’m not sure your --
Justice Hugo L. Black: I doubt if it’s --
Mr. David W. Peck: It’s under attack in their --
Justice Hugo L. Black: I doubt if there’s a member of this Court that would disagree with you Judge --
Mr. David W. Peck: Thank you.
Justice Hugo L. Black: -- that a necessity of good moral character.
Of course, people would disagree on what good moral character is.
Mr. David W. Peck: The objective is made specifically, I heard from my friend make the objection, to a so-called Home Life Affidavit, which he has somewhat overstated, that the two affiance, are expected to report upon the home life of the applicant, nothing of the kind.
All they are asked is in what ways do they know the applicant, merely professionally or personally and the question is asked, have they visited his home?
Nothing about what they found when ans and if they did visit.
Justice John M. Harlan: I think Judge Peck, that as far as the rulings of Judge Friendly on the specific questions that he held were improper, you’re not quarreling with those rulings?
Mr. David W. Peck: We’ve changed it.
We’ve done exactly what the Court said.
Now, we come to the question --
Justice Hugo L. Black: May I ask you of this statement, this application here, can you see it in this record, it does contain --
Mr. David W. Peck: Could you tell me what page it is --
Justice Hugo L. Black: It’s page -- right next to page 52.
Is that the one?
Mr. David W. Peck: That’s of the old questionnaire, Mr. Justice.
Justice Hugo L. Black: Is it the questionnaire now?
Mr. David W. Peck: No.
Justice Hugo L. Black: Is it the one we have up before?
Mr. David W. Peck: No.
Justice Hugo L. Black: Why was it put in here?
Mr. David W. Peck: Well, they put in their record here the whole history of this thing.
Justice Hugo L. Black: The history of it?
Mr. David W. Peck: Yes.
Justice Hugo L. Black: So, this is an older.
How many -- where is the present questionnaire?
Mr. David W. Peck: I think just one -- I’m informed that pages 121 and 139.
Justice Hugo L. Black: That’s the one that they’re attacking?
Mr. David W. Peck: No, the present questionnaire.
Justice Hugo L. Black: There are some here that seem to go pretty far up here, I would think?
Mr. David W. Peck: 125, Mr. Justice.
Justice Hugo L. Black: 125.
Mr. David W. Peck: 125.
Now, on the matter of the so-called political activity, which is very narrow indeed, if you want to call it, political activity.
There is the provision of Rule 9406, which if it were standing alone and without any interpretation or implementation would bother me.
Rule 9406 says that a person shall not be admitted, unless he shall furnish satisfactory proof that believes in the form of Government of the United States and is loyal to such Government.
Now, I suppose you can indulge your imagination and say that the form of Government means a bicameral legislature and the electoral college, although of course, we all know that if any applicant said that if he believes in abolishing the electoral college and believes in the unicameral legislature, nobody would ever ask him a second question, let alone be disturbed in the slightest by his answers.
Justice John M. Harlan: I suppose the oath that we take, you probably took it at one stage, that we support -- to support the Constitution of the United States by member reservation purpose of evasion might have the same fairness?
Mr. David W. Peck: That I think it well might, as Judge Friendly says you have to have some generality of language.
You can't pick words always with an exact precision that covers precisely what you want and can't conceivably cover something else.
But as Judge Friendly pointed out, you have to look at this in the way that it has been interpreted and applied by the courts.
And, there is no question at all that’s addressed to an applicant about his beliefs in anything.
If the Court will look at pages 5 and 6 of our brief, Your Honors will find the questions which are asked and there are four of them.
The first, all of which are aimed at testing whether a man can conscientiously take the common oath of supporting the Constitution.
Section 26 (a) says, “Have you ever organized or help organized, have been member of an organization, which you knew, you knew was advocating or teaching the overthrow of the Government by force or by certain unlawful means.”
And that if your answer is in the affirmative, this is 26 (b), “did you, during that period have the specific intent to further the aims of such organization to overthrow or overturn the Government by unlawful means?”
I can't see any that any exception can be taken to those questions and if exception could be taken, I submit that Konigsberg has settled it.
And while Mr. Dorsen says that he has not asking for any overruling of Konigsberg, the brief submitted by his clients, make it perfectly clear that that’s exactly what they’re asking for, an overruling of Konigsberg.
Justice Hugo L. Black: Judge Peck.
Mr. David W. Peck: Yes, Your Honor.
Justice Hugo L. Black: Now, you get down to a question that has little more significance than some of the others, but suppose a man had sworn that he didn’t belong to any organization which believed in the overthrow, indict him for perjury, then would the issue in that case be whether or not that organization was advocating the overthrow of the Government and who would have the burden of proof on it?
Mr. David W. Peck: Well, certainly the prosecution would have the burden that the organization advocated that, that he knew it.
Justice Hugo L. Black: But who would it prove it to?
Mr. David W. Peck: That he knew it.
Justice Hugo L. Black: It Might have a million members.
Well, how would you prove that he advocated it, put that issue to the jury in a man’s trial for perjury, what should be doing is to try the McCarthy line cases in a man’s charge against perjury against him.
Mr. David W. Peck: I can imagine how you might, it might be difficult, but I suppose that you might produce members of the organization, who testified as to its nature, and testified to conversations that they had with this man when they asked him to belong to the organization and that they advised him, that they believed in the overthrow of the Government by force and he said, “That’s right, that’s exactly what I believe in,” and that’s why --
Justice Hugo L. Black: And that would be the issue to be tried on a perjury case?
Mr. David W. Peck: Could be, it could be.
Justice Hugo L. Black: Get right back into the old McCarthy days?
Mr. David W. Peck: Most respectfully Mr. Justice, I really don’t think so.
Justice Hugo L. Black: But, it certainly is a step in that direction, is it not?
Mr. David W. Peck: I wouldn’t say that.
Justice Hugo L. Black: Raising the same question that he was raising and of course, it wouldn’t be difficult to prove that some of the things that might have to prove to convict him with perjury.
If they showed by six witnesses that some of them said that was the purpose they understood the organization was organized for, then he would have to overcome that wouldn’t he, by evidence?
Mr. David W. Peck: Well, I don’t think so.
Justice Hugo L. Black: You don’t?
Mr. David W. Peck: I’ve said that the prosecution would certainly have to go on and show by evidence --
Justice Hugo L. Black: Where’s they showed it?
Mr. David W. Peck: -- beyond the reasonable doubt that he knew perfectly well when he joined this organization, what its precepts were, that he subscribed to them willingly and that when he answered the questions on the questionnaire that he wasn’t forgetful -- [Voice Overlap] deliberately deceitful.
Justice Hugo L. Black: Suppose he had a foreign name and he was tried by jury, they prove by six or seven witnesses that they had told him, what you said they had.
Now how difficult might it be for him to show to the jury that he hadn’t, that they were wrong?
Why does the Bar Associations have to get mixed up and involved in all of that issue and simply determine good character of a human being who wants to be lawyer, which ought to be done?
Mr. David W. Peck: Well, I think it depends upon the embrace of the word good character and whether or not it includes an ability and a willingness to take an oath to support the Constitution, generally in these cases --
Justice Hugo L. Black: But, I haven’t object -- I haven’t asked you about that.
I took oath, I’m glad of it.
I want to do it, on both sides.
Mr. David W. Peck: I think Mr. Justice, if you start with the premise that the oath maybe required, I think it follows that a committee investigating into a qualifications of a candidate for admission to the Bar are entitled to make an appropriate inquiries to ascertain whether or not this man can conscientiously take that oath and when he takes it will mean it.
Justice Hugo L. Black: Well, why should they -- why should in order to show that after subject him to the possibility of a trial for perjury on issues involving the advocacy of a big organization?
How could he involve -- escape having to defend himself on that if someone happen to be after him?
Mr. David W. Peck: He might say, “I don’t know about an organization.”
Justice Hugo L. Black: He might say I have none.
Mr. David W. Peck: He might -- No, but the question is first that he was member --
Justice Hugo L. Black: Have you belong to an organization that advocates --
Mr. David W. Peck: Which you knew, oh, no --
Justice Hugo L. Black: Alright, which knew advocates.
So, they subject him to a trial for perjury on that issue about an organization, as to whether it believed in overthrowing the Government.
Mr. David W. Peck: And he knew it.
Justice Hugo L. Black: Yes, and he knew it, we’ll take them both, take them both, get him on the right environment, with the right jury, in the right locality, with the right prosecutors, and with the right judges.
Mr. David W. Peck: And maybe should be convicted of perjury, --
Chief Justice Warren E. Burger: I suppose Judge Peck it’s true that anytime a man has six witnesses against him, testifying to a fact in a criminal case, he’s got serious problem, doesn’t he?
Mr. David W. Peck: Yes sir, he has problems.
Justice Hugo L. Black: He has more serious ones, when it’s on an issue that a subject to the sharpest political divisions, and while the organization are talking about are some that the vast majority of the people are vigorously against, does he not?
Mr. David W. Peck: We’re trying all the time, Mr. Justice, cases which are in a sensitive area and where a defendant sometimes think they are not apt to get a fair trial, yet.
Justice Hugo L. Black: And they provide for changes of venue and everything.
Mr. David W. Peck: And they provide for changes of venue, but that sometime --
Justice Hugo L. Black: Some of these you couldn’t provide for changes that you hold very easily.
Mr. David W. Peck: Oh, I would think you might get a change of venue if you made a showing that the --
Justice Hugo L. Black: Why would you get into?
Mr. David W. Peck: -- the atmosphere, some other jurisdiction, where they --
Justice Hugo L. Black: Which one are you going to get, when there's a lot of talking about Reds and the communists?
You would expect to have a community that was looking too sharply if they had somebody to say that man had done something to help them.
Mr. David W. Peck: I can only say very respectfully Mr. Justice that I don’t feel that the dangers here are any different from the dangers in the good many cases, where defendants feel justly or unjustly that they have difficulties in coping with the nature of the case as before the Court, but we have to try them, we do the best we can and notwithstanding --
Justice Hugo L. Black: But you don’t have to make certain things a crime, with reference to what a man believes or what organizations he belong to and what they believed and advocated?
Mr. David W. Peck: May I repeat that there is no question here which asks a man’s belief about anything.
The questions are, “Have you been a member of this organization knowing and --
Justice Hugo L. Black: And, and --
Mr. David W. Peck: -- and that you have the specific intent?"
Justice Hugo L. Black: Have you been a member of this organization and an organization which advocated to overthrow the Government?
Mr. David W. Peck: And did you know it?
Justice Hugo L. Black: As you know that there are very, very many people who refuse any political party in this country of being on one side or the other of that issue.
I presume that they would have to deny belonging to the party, political party.
To be safe --
Mr. David W. Peck: I don’t really think they have that problem.
Plus the specific intent and then, I’ll just close by reference on page six of our brief to questions 27 and 28, I mean 27 (a) and 27 (b), which are merely inquiry, “Is there any reason why you cannot take and subscribe to an oath or affirmation that you will support the Constitution of the United States?
If there is please explain, (b) Can you conscientiously and do you affirm what you are without any mental reservation just as the oath taken by a member of this Court loyal to and ready to support the Constitution of the United States?”
It’s my respectful submission that the appellate divisions of the Supreme Court of the State of New York have very conscientiously, with the aid of the District Court here limited these provisions, these requirements, and these questions to what is entirely proper.
Justice Hugo L. Black: May I ask you just one other question?
Mr. David W. Peck: Yes sir, Mr. Justice.
Justice Hugo L. Black: To get ground to the root of the matter?
Do you believe the Bar ought to have a right to deny a man admission, because he’s been a member of the Communist Party, that’s the issue really?
Mr. David W. Peck: No, I don’t think that’s the issue and I would answer that question Mr. Justice by saying that I don’t think that a man should be denied admission merely because he is at one time or another, been a member of the Communist Party --
Justice Hugo L. Black: Or he was a member at the time he applied?
Mr. David W. Peck: No, I wouldn't think that alone properly would be sufficient.
I think it is perfectly clearly indicated here Mr. Justice what the line is and that is belonging to the organization, knowing that it believes in the overthrow of the Government by violence and that the applicant has the specific intent.
Justice Hugo L. Black: Applicant?
Mr. David W. Peck: Yes --
Justice Hugo L. Black: The applicant?
Mr. David W. Peck: The applicant for admission to the Bar has this specific intent to have the Government overthrown by force.
Justice Hugo L. Black: Well now, that’s quite different to the question, I asked you that the applicant has it?
Mr. David W. Peck: Well, that’s how I understood the question Mr. Justice.
Chief Justice Warren E. Burger: Thank you Judge Peck, I believe your time is up.
Does Mr. Dorsen have anymore time?
Rebuttal of Norman Dorsen
Mr. Norman Dorsen: No, Your Honor.
Chief Justice Warren E. Burger: No.
Thank you Mr. Dorsen, thank you Judge Peck.
The case is submitted.