Konigsberg v. State Bar

¶1I dissent. The United States Supreme Court has determined that Konigsberg was denied due process of law and equal protection of the laws on the ground that “the evidence does not rationally support the only two grounds upon which the Committee relied in rejecting his application for admission to the California Bar.” (Konigsberg v. State Bar, 353 U.S. 252, 262 [77 S.Ct. 722, 1 L.Ed.2d 810].) In its words, “there is no evidence in the record which rationally justifies a finding that Konigsberg failed to establish his good moral character or failed to show that he did not advocate forceful overthrow of the Government. Without some authentic reliable evidence of unlawful or immoral actions reflecting adversely upon him, it is difficult to comprehend why the State Bar Committee rejected a man of Konigsberg’s background and character as morally unfit to practice law.” (353 U.S. at 273.)

¶2It declined to determine whether Konigsberg could be ex*775cluded from practice solely because of his refusal to answer questions, stating:

“There is nothing in the California statutes, the California decisions, or even in the Rules of the Bar Committee, which has been called to our attention, that suggests that failure to answer a Bar Examiner’s inquiry is, ipso facto, a basis for excluding an applicant from the Bar, irrespective of how overwhelming is his showing of good character or loyalty or how flimsy are the suspicions of the Bar Examiners. Serious questions of elemental fairness would be raised if the Committee had excluded Konigsberg simply because he failed to answer questions without first explicitly warning him that he could be barred for this reason alone, even though his moral character and loyalty were unimpeachable, and then giving him a chance to comply. In our opinion, there is nothing in the record which indicates that the Committee, in a matter of such grave importance to Konigsberg, applied a brand new exclusionary rule to his application—all without telling him that it was doing so.

“If it were possible for us to say that the Board had barred Konigsberg solely because of his refusal to respond to its inquiries into his political associations and his opinions about matters of public interest, then we would be compelled to decide far-reaching and complex questions relating to freedom of speech, press and assembly. There is no justification for our straining to reach these difficult problems when the Board itself has not seen fit, at any time, to base its exclusion of Konigsberg on his failure to answer. If and when a State makes failure to answer a question an independent ground for exclusion from the Bar, then this Court, as the cases arise, will have to determine whether the exclusion is constitutionally permissible. We do not mean to intimate any view on that problem here nor do we mean to approve or disapprove Konigsberg’s refusal to answer the particular questions asked him.” (353 U.S. at 260, 262, footnotes omitted.)

¶3The United States Supreme Court reversed the judgment of this court and remanded the case “for further proceedings not inconsistent with this opinion.” (353 U.S. at 274.) In view of the questions expressly left undecided and the court’s remand, it is my opinion that this court is not foreclosed by the United States Supreme Court’s decision in this case from adopting and applying to Konigsberg a rule making *776failure to answer relevant questions with respect to his qualifications an independent ground for exclusion.

¶4An applicant ordinarily has the burden of establishing his qualifications to practice law, and if he refuses to answer questions relevant to his qualifications, it is my opinion that this court is justified in denying him admission. Given the congressional and state legislative findings with regard to the Communist Party and the adjudications of guilt of its leaders of criminal advocacy, a question as to present or past membership in that party is relevant to the issue of possible criminal advocacy and hence to the applicant's qualifications.

¶5Whatever its relevancy in a particular context, however, it is an extraordinary variant of the usual inquiry into crime, for the attendant burden of proof upon any one under question poses the immediate threat of prior restraint upon the free speech of all applicants. The possibility of inquiry into their speech, the heavy burden upon them to establish its innocence, and the evil repercussions of inquiry despite innocence, would constrain them to speak their minds so noncommittally that no one could ever mistake their innocuous words for advocacy. This grave danger to freedom of speech could be averted without loss to legitimate investigation by shifting the burden to the examiners. Confronted with a prima facie case, an applicant would then be obliged to rebut it.

¶6Such a procedure is logically dictated by Speiser v. Randall, 357 U.S. 513 [78 S.Ct. 1332, 1352, 2 L.Ed.2d 1460], The court there assumed that the state could deny a tax exemption to one whose advocacy of the unlawful overthrow of the government was such that it could be punished as a crime. Mindful of the risks to free speech, however, it took care to hold that the state could not compel the taxpayer to prove his right to an exemption and that therefore an oath as to his innocence of unlawful advocacy could not be required. There may be differences of degree in the public interest in the fitness of the applicants for tax exemption and for admission to the Bar. Even though the state may have more at stake in the latter situation, it is not therefore freer to endanger free speech needlessly.

¶7Inquiry on the issue of advocacy of the unlawful overthrow of the government is a greedy camel; it does not easily take its leave. It has a way of moving on into the domain of lawful economic and political belief, speech, and activity. It bears noting that such advocacy, whether it carries erimi*777nal or civil sanctions, is unlike crimes whose elements readily set them apart from legitimate activity. (Cf., Dennis v. United States, 341 U.S. 494 [71 S.Ct. 857, 95 L.Ed. 1137], with Yates v. United States, 354 U.S. 298 [77 S.Ct. 1064, 1 L.Ed.2d 1356].) It also bears noting that such advocacy is not invariably associated with even active membership in the Communist Party. (Yates v. United States, supra.)

¶8Such considerations as these may have led to the result in Speiser v. Randall, supra,357 U.S. 513. In contrast an applicant for public employment can be required to state whether or not he is or was a member of the Communist Party, as a condition of his employment. (Lerner v. Casey, 357 U.S. 468 [78 S.Ct. 1311, 2 L.Ed.2d 1423] ; Beilan v. Board of Public Education, 357 U.S. 399 [78 S.Ct. 1317, 1324, 2 L.Ed.2d 1414, 1433]; Steinmetz v. California State Board of Education, 44 Cal.2d 816, 823 [285 P.2d 617] ; Pockman v. Leonard, 39 Cal.2d 676, 685-687 [249 P.2d 267].) Since an attorney is neither a public employee nor a taxpayer seeking an exemption, we do not know how the United States Supreme Court would resolve the constitutional issue here. Still, it has emphasized the importance of an independent Bar, and it has declared that petitioner’s insistence on a constitutional right not to answer the questions here involved was not frivolous. (Konigsberg v. State Bar, 353 U.S. 252, 270, 273 [77 S.Ct. 722, 1 L.Ed.2d 810].)

¶9We need not resolve the constitutional question, for the Legislature has not directed that section 6064.1 of the Business and Professions Code* be enforced by compelling applicants to answer all questions relevant to the proscribed advocacy, and significantly, it has not required declarations of nonadvocacy from members of the Bar. It rests solely with this court, in its supervision of admissions to the Bar, to determine whether petitioner must answer the questions in issue. The question is not whether the Legislature might constitutionally impose such requirements but whether this court should impose them. There is no good reason for the court to do so, particularly when the Legislature has made no attempt to impose them on practicing attorneys.

¶10The United States Supreme Court has determined that Konigsberg established his good moral character and that *778he did not advocate unlawful overthrow of the government. In the subsequent hearing there was no additional evidence adverse to Konigsberg. The committee did no more than make clear to him that his failure to answer would be an independent ground for not certifying him to this court. Konigsberg chose to stand on his constitutional objections, and as the United States Supreme Court pointed out, there is “nothing in the record which indicates that his position was not taken in good faith.” (353 U.S. at 270.) If the committee had evidence that would support a finding of unlawful advocacy, it could compel Konigsberg to disclose political statements and associations in rebuttal or forego admission to the Bar. As the United States Supreme Court held, the committee made no prima facie case against Konigsberg, and we are bound by that holding. I would therefore grant the petition of Konigsberg and admit him to the Bar of this state.

¶12Petitioner seeks review of the action of the Committee of Bar Examiners in refusing to certify him to this court for admission to practice law in California. Also, he has applied directly to this court for admission to practice.

¶13The Committee of Bar Examiners is established by the *770Board of Governors of The State Bar of California pursuant to statutory authority. It conducts the bar examinations and certifies directly to this court those applicants for admission who fulfill the requirements of the code (Bus. & Prof. Code, § 6046). This court may admit to practice any applicant so certified (Bus. & Prof. Code, § 6064). An applicant who is refused certification may have the action of the committee reviewed by this court (Bus. & Prof. Code, § 6066).

¶14The code specifically provides (§ 6064.1) that “ [n]o person who advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means, shall be certified . . . for admission. ...”

¶15In October, 1953, petitioner took and passed the written bar examination. Shortly before that examination, and on several later occasions, hearings were conducted by a subcommittee and the full Committee of Bar Examiners.

¶16An ex-Communist testified that petitioner had attended meetings of a Communist Party unit in 1941. Petitioner offered much evidence of his satisfactory service in the Army during World War II, and of his good character and loyalty. The evidence of these hearings is reviewed in some detail in the several opinions in Konigsberg v. State Bar, 353 U.S. 252 [77 S.Ct. 722, 1 L.Ed.2d 810]. Petitioner denied that he advocated overthrow of the government, but refused to answer any questions of committee members as to his membership in the Communist Party, asserting that such inquiries infringed rights guaranteed him by the First and Fourteenth Amendments to the Constitution of the United States.

¶17The committee, by letter of May 17,1954, advised petitioner that his application was denied on grounds that he had not sustained his burden of establishing that he (1) possessed the good moral character required by section 6060, subdivision (c), of the code, or (2) did not advocate unlawful overthrow of the government, the showing required by section 6064.1.

¶18Petitioner thereupon sought review by this court. His petition was denied April 20, 1955, without opinion, by a divided court. The United States Supreme Court granted certiorari. On May 6,1957, that court, with three justices dissenting and one not participating, reversed and remanded the matter to this court “for further proceedings not inconsistent with this opinion” (Konigsberg v. State Bar, supra,353 U.S. 252).

¶19In doing so, the United States Supreme Court held (p. 273) that “there is no evidence in the record which rationally justifies a finding that Konigsberg failed to establish his good *771moral character or failed to show that he did not advocate forceful overthrow of the Government.”

¶20That court specifically pointed out (p. 259) that Konigsberg “was not denied admission to the California Bar simply because he refused to answer questions,” and noted that he had not been told that he would be barred “just because he refused to answer relevant inquiries or because he was obstructing the Committee.” In this connection it was said (p. 261) that “Serious questions of elemental fairness would be raised if the Committee had excluded Konigsberg simply because he failed to answer questions without first explicitly warning him that he could be barred for this reason alone. ...”

¶21The court stated (353 U.S. at pp. 261-262) that “If it were possible for us to say that the . . . [committee] had barred Konigsberg solely because of his refusal to respond to its inquiries into his political associations and his opinions about matters of public interest, then we would be compelled to decide far-reaching and complex questions relating to freedom of speech, press and assembly. There is no justification for our straining to reach these difficult problems when the . . . [committee] itself has not seen fit, at any time, to base its exclusion of Konigsberg on his failure to answer. If and when a State makes failure to answer a question an independent ground for exclusion from the Bar, then this Court, as the cases arise, will have to determine whether the exclusion is constitutionally permissible. We do not mean to intimate any view on that problem here nor do we mean to approve or disapprove Konigsberg’s refusal to answer the particular questions asked him.”

¶22Following the remand, this court vacated its prior order denying the petition for review and referred the entire matter, including the application for admission to the bar filed with us by petitioner after the decision of the United States Supreme Court, to the Committee of Bar Examiners for further proceedings. The committee conducted a hearing September 21, 1957.

¶23At this hearing, the records of all previous hearings were incorporated by stipulation as part of the record, petitioner and a witness called by him were examined, and petitioner introduced letters recommending him as to character and loyalty. No evidence additional to that received in the 1953-1954 hearings was offered as reflecting on petitioner’s loyalty or to show his advocacy of overthrow of the government. Thus a finding that he was not of good moral character or that he advocated overthrow of the government would be inconsistent *772with the decision of the United States Supreme Court upon the previous record.

¶24At the 1957 hearing, however, the committee did fully advise petitioner and his counsel that his refusal to answer material questions put to him by it would obstruct its investigation of his qualifications to practice law, with the result that the committee would not be able to certify him for admission. It was made clear to him that questions concerning membership in the Communist Party were deemed material. Nonetheless, petitioner refused to answer any and all questions put to him by the committee concerning either past or present membership in or affiliation with the Communist Party. The committee then found that Konigsberg had refused to answer its questions as to his membership in or affiliation with the Communist Party, that these questions were material to a proper determination of his qualifications, that his refusal to answer had obstructed the investigation which the statute requires, and that because of this refusal the committee is unable to certify him for admission.

¶25It is this action which petitioner seeks to have reviewed. It differs materially from that of 1954. The committee action now before us contains no findings or conclusion that petitioner had failed to establish either his good moral character or his abstention from advocacy of overthrow of the government.

¶26Here it is the refusal to answer material questions which is the basis for denial of certification. Petitioner’s refusal to answer is conceded. The issue is whether the questions are material. We think their materiality is clear. The committee is enjoined against certifying for admission to practice any person who “advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means.” (Bus. & Prof. Code, S 6064.1.) This provision clearly requires the committee to inquire as to such advocacy. The Congress (68 Stat. 775; 50 TT.S.C. § 841) and the California Legislature (Gov. Code, § 1027.5) have declared that the Communist Party does advocate such overthrow. It follows that inquiry as to membership in that party is relevant and material in determining whether the proscribed advocacy exists. Petitioner refused to answer questions as to such membership at periods after the statutory proscription and after the legislative declarations of the purpose of the Communist Party. As we have noted, he persisted in his refusal after being warned that such conduct would be deemed to require denial of his certification by the committee.

¶27*773We are unable to distinguish this situation from that presented in Beilan v. Board, of Public Education, 357 U.S. 399 [78 S.Ct. 1317, 1324, 2 L.Ed.2d 1414, 1433], There a school teacher refused to answer questions as to his loyalty. This refusal was made the basis for a finding of “incompetency.” There, as here, there was no finding that the individual was in fact disloyal, but merely a finding that Ms refusal to answer questions pertinent to his loyalty revealed a lack of candor which constituted unfitness. Our case is somewhat stronger in that here a statute specifically requires the committee to certify that petitioner does not advocate overthrow of the government, and the question as to party membership bears upon that issue. In Beilan, as here, there was no rule specifically providing that the failure to answer would be deemed ground for adverse action, but here, as there, the investigating authority gave clear warning that such a result would follow.

¶28In its previous decision in this case, the United States Supreme Court held only that the evidence was insufficient to sustain a finding that petitioner is not of good moral character. The present record contains no additional evidence on that subject. However, the refusal to certify for admission is, on the present record, based wholly upon his refusal to answer pertinent questions. This ground was specifically left open in the earlier decision of that court and subsequent decisions have recognized this fact. (Beilan v. Board of Public Education, supra, p. 409; Lerner v. Casey, 357 U.S. 468, 478 [78 S.Ct. 1311, 1324, 2 L.Ed.2d 1423, 1433].)

¶29Determination whether petitioner was a member of the party which has been legislatively determined to advocate overthrow of the government was blocked by Ms refusal to answer. Such refusal likewise effectively prevented the committee from reaching the question whether, if he were such a member, Ms membership was knowing or innocent. The committee’s refusal to recommend him for admission was based upon Ms refusal to answer inquiries about Ms relevant activities—not upon those activities themselves. Thus its refusal is fully justified under the rule of Beilan, which disposes of Ms claim that his constitutional rights have been infringed.

¶30Petitioner does not question the constitutionality of the code section which prohibits certification of one who advocates unlawful overthrow of the government, nor of the federal and state legislative declarations that the Communist Party seeks such overthrow. Implicit in the statutory provi*774sion for review of the committee’s refusal to certify an applicant is the power of this court to admit one not so certified. But to admit applicants who refuse to answer the committee’s questions upon these subjects would nullify the concededly valid legislative direction to the committee. Such a rule would effectively stifle committee inquiry upon issues legislatively declared to be relevant to that issue. We cannot in good conscience deny the committee the right to inquire into a matter as to which it must certify. Whether the members of this court consider such a statute effective, practical or wise is irrelevant. We do not act in a legislative capacity. Rather, we recognize and enforce legislation which is valid.

¶31We adopt and approve the findings of the committee stated in the 1957 report. The petition for review and the application for admission to the bar are denied.

¶32Gibson, C. J., deeming himself disqualified, did not participate.

¶33Draper, J., sat pro tempore* in place of the Chief Justice.

¶34White, J., not having been a member of the. court at the time of oral argument, did not participate.