Konigsberg v. State Bar of California (353 U.S. 252)

353 U.S. 252
Konigsberg v. State Bar of California
Argued: January 14, 1957
Decided: May 6, 1957


See 354 U.S. 927, 77 S.Ct. 1374.

Mr. Edward Mosk, Hollywood, Cal., for the petitioner.
Mr. Frank B. Belcher, Los Angeles, Cal., for the respondents.
Mr. Justice BLACK delivered the opinion of the Court.

Opinion of the Court

The petitioner, Raphael Konigsberg, graduated from the Law School of the University of Southern California in 1953 and four months later satisfactorily passed the California bar examination. Nevertheless, the State Committee of Bar Examiners, after several hearings, refused to certify him to practice law on the grounds he had failed to prove (1) that he was of good moral character and (2) that he did not advocate overthrow of the Government of the United States or California by unconstitutional means. [1] As permitted by state law, Konigsberg asked the California Supreme Court to review the Committee’s refusal to give him its certification. He contended that he had satisfactorily proved that he met all the requirements for admission to the bar, and that the Committee’s action deprived him of right secured by the Fourteenth Amendment to the United States Constitution. The State Supreme Court, without opinion, and with three of its seven justices dissenting, denied his petition for review. We granted certiorari because the constitutional questions presented were substantial. 351 U.S. 936, 76 S.Ct. 832, 100 L.Ed. 1464.

Before reaching the merits, we must first consider the State’s contention that this Court does not have jurisdiction to review the case. The State argues (1) that petitioner did not present his constitutional claims to the California Supreme Court in the manner prescribed by that court’s rules, and (2) that the state court’s decision not to grant him relief can be attributed to his failure to conform to its procedural rules rather than to a rejection of his constitutional claims.

In considering actions of the Committee of Bar Examiners the California Supreme Court exercises original jurisdiction and is not restricted to the limited review made by an appellate court. For example, that court declared in In re Lacey, 11 Cal.2d 699, at page 701, 81 P.2d 935, at page 936:

‘That this court has the inherent power and authority to admit an applicant to practice law in this state or to reinstate an applicant previously disbarred despite an unfavorable report upon such application by the Board of Bar Governors of the State Bar, we think is now well settled in this state. * * * The recommendation of the Board of Bar Governors is advisory only * * *. (T)he final determination in all these matters rests with this court, and its powers in that regard are plenary and its judgment conclusive.’ [2]

The California Supreme Court has a special rule, Rule 59(b) which governs review of actions of the Bar Examiners. [3] Rule 59(b) requires that a petition for review ‘shall specify the grounds relied on and shall be accompanied by petitioner’s brief.’ Konigsberg complied with this rule. In his petition for review he specifically charged that the findings of the Committee were not supported by any lawful evidence. [4] The petition then went on to assert that the Committee’s action, which was based on findings that the petition had previously alleged were not supported by evidence, was an attempt by the State of California in violation of the Fourteenth Amendment to deprive him ‘of life, liberty, or property, without due process of law’ and to deny him ‘the equal protection of the laws.’

Throughout the hearings before the Bar Examiners Konigsberg repeatedly objected to questions about his beliefs and associations asserting that such inquiries infringed rights guaranteed him by the First and Fourteenth Amendments. He urged that the Committee would abridge freedom of speech, press and assembly, violate due process, and deny equal protection of the laws if it denied his application because of his political opinions, writings, and affiliations. He asserted that he had affirmatively proved his good moral character and that there was no legal basis for finding that he was morally unfit to practice law. He insisted that in determining whether he was qualified the Committee had to comply with due process of law and cited as supporting his position Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, and Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817, where this Court condemned arbitrary findings as offensive to due process. [5] Since Konigsberg challenged the sufficiency of the evidence in his petition for review, it seems clear that the State Supreme Court examined the entire record of the hearings before the Bar Examiners [6] and must have been aware of the constitutional arguments made by Konigsberg during the hearings and the authorities relied on to support these arguments.

The State contends, however, that it was not enough for Konigsberg to raise his constitutional objections in his petition, in the manner prescribed by Rule 59(b), and at the hearings. It claims that under California practice the State Supreme Court will not consider a contention unless it is supported by an argument and citation of authorities in a brief submitted by the person seeking review. Because Konigsberg’s brief did not repeat, precisely and in detail, the constitutional objections set forth in his petition, [7] the argument continues, this Court is compelled to hold that the State Supreme Court could have refused relief to petitioner on a narrow procedural ground. But the California cases cited by the State do not require such a conclusion. It is true that the State Supreme Court has insisted that on appeal in ordinary civil cases alleged errors should be pointed out clearly and concisely, with reasons why they are erroneous, and with reference to supporting authorities. [8] However this case was not reviewed under the rules of appeal which apply to the ordinary civil case but rather under a special rule applying to original proceedings. We are pointed to nothing which indicates that the State Supreme Court has adopted any rule in this type of case which requires that contentions raised in the petition for review must also be set out in the brief. The one case cited, Johnson v. State Bar of California, 4 Cal.2d 744, 52 P.2d 928, indicates the contrary. In challenging the recommendation of the Board of Governors of the State Bar that he be suspended from the practice of law, Johnson alleged, apparently in an offhand way, that the entire State Bar Act was ‘unconstitutional.’ He made no argument and cited no authority to support this bare, sweeping assertion. While the court said that this was an insufficient presentation of the issue it nevertheless went ahead to consider and reject Johnson’s argument and to hold the Act constitutional.

Counsel for California concedes that the state courts in criminal cases often pass on issues ineptly argued in a defendant’s brief or sometimes not raised there at all. [9] As counsel states, the reasons for relaxing this standard in criminal cases are obvious-such cases may involve forfeiture of the accused’s property, liberty, or life. While this is not a criminal case, its consequences for Konigsberg take it out of the ordinary run of civil cases. The Committee’s action prevents him from earning a living by practicing law. This deprivation has grave consequences for a man who has spent years of study and a great deal of money in preparing to be a lawyer.

In view of the grounds relied on in Konigsberg’s petition for review, his repeated assertions throughout the hearings of various federal constitutional rights, and the practices of the California Supreme Court, we cannot conclude that that court, with three of its seven justices dissenting, intended to uphold petitioner’s exclusion from the practice of law because his lawyer failed to elaborate in his brief the constitutional claims set forth in his petition for review and in the record of the hearings. Our conclusion is that the constitutional issues are before us and we must consider them. [10]

We now turn to the merits. In passing on Konigsberg’s application, the Committee of Bar Examiners conducted a series of hearings. At these hearings Konigsberg was questioned at great length about his political affiliations and beliefs. Practically all of these questions were directed at finding out whether he was or ever had been a member of the Communist Party. Konigsberg declined to respond to this line of questioning, insisting that it was an intrusion into areas protected by the Federal Constitution. He also objected on the ground that California law did not require him to divulge his political associations or opinions in order to qualify for the Bar and that questions about these matters were not relevant. [11]

The Committee of Bar Examiners rejected Konigsberg’s application on the ground that the evidence in the record raised substantial doubts about his character and his loyalty which he had failed to dispel. At the conclusion of the hearings, the Committee sent a formal written notice-which later served as the basis for his petition to the California Supreme Court-stating that his application was denied because:

1. We failed to demonstrate that he was a person of good moral character and

2. He failed to show that he did not advocate the overthrow of the Government of the United States or the State by force, violence or other unconstitutional means.

He was not denied admission to the California Bar simply because he refused to answer questions. [12]

In Konigsberg’s petition for review to the State Supreme Court there is no suggestion that the Committee had excluded him merely for failing to respond to its inquiries. Nor did the Committee in its answer indicate that this was the basis for its action. After responding to Konigsberg’s allegations, the Bar Committee set forth a defense of its action which in substance repeated the reasons it had given Konigsberg in the formal notice of denial for rejecting his application. [13]

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. [14] 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. [15]

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.

We now pass to the issue which we believe is presented in this case: Does the evidence in the record support any reasonable doubts about Konigsberg’s good character or his loyalty to the Governments of State and Nation? In considering this issue, we must, of course, take into account the Committee’s contention that Konigsberg’s failure to respond to questions was evidence from which some inference of doubtful character and loyalty can be drawn.

Konigsberg claims that he established his good moral character by overwhelming evidence and carried the burden of proving that he does not advocate overthrow of the Government. He contends here, as he did in the California court, that there is no evidence in the record which rationally supports a finding of doubt about his character or loyalty. If this contention is correct, he has been denied the right to practice law although there was no basis for the finding that he failed to meet the qualifications which the State demands of a person seeking to become a lawyer. If this is true, California’s refusal to admit him is a denial of due process and of equal protection of the laws because both arbitrary and discriminatory. [16] After examination of the record, [17] we are compelled to agree with Konigsberg 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.

A. Good Moral Character.-The term ‘good moral character’ has long been used as a qualification for membership in the Bar and has served a useful purpose in this respect. However the term, by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. [18] Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.

While we do not have the benefit of a definition of ‘good moral character’ by the California Supreme Court in this case, counsel for the State tells us that the definition of that term adopted in California ‘stresses elements of honesty, fairness and respect for the rights of others and for the laws of the state and nation.’ The decisions of California courts cited here do not support so broad a definition as claimed by counsel. These cases instead appear to define ‘good moral character’ in terms of an absence of proven conduct or acts which have been historically considered as manifestations of ‘moral turpitude.’ To illustrate, California has held that an applicant did not have good character who had been convicted of forgery and had practiced law without a license, [19] or who had obtained money by false representations and had committed fraud upon a court, [20] or who had submitted false affidavits to the Committee along with his application for admission. [21] It should be emphasized that neither the definition proposed by counsel nor those appearing in the California cases equates unorthodox political beliefs or membership in lawful political parties with bad moral character. Assuming for purposes of this case that counsel’s broad definition of ‘good moral character’ is the one adopted in California, the question is whether or the whole record a reasonable man could fairly find that there were substantial doubts about Konigsberg’s ‘honesty, fairness and respect for the rights of others and for the laws of the state and nation.’

A person called on to prove his character is compelled to turn to the people who know him. Here, forty-two individuals who had known Konigsberg at different times during the past twenty years attested to his excellent character. [22] These testimonials came from persons in every walk of life. Included among them were a Catholic priest, a Jewish rabbi, lawyers, doctors, professors, businessmen and social workers. The following are typical of the statements made about Konigsberg:

‘He seems to hold the Constitution in high esteem and is a vigorous supporter of civil rights. * * * He indicated to me an open-mindedness seemingly inconsistent with any calculated disregard of his duty as a loyal and conscientious citizen.’

‘I unreservedly recommend Mr. Konigsberg as a person who is morally and ethically qualified to serve as a member of (the bar).’

‘I recommend Mr. Konigsberg unreservedly as a person of high moral principle and character. * * * He is a much more profound person than the average bar applicant and exhibits a social consciousness which, in my opinion, is unfortunately too rare among applicants.’

‘I do not hesitate to recommend him to you. I am satisfied that he will measure up to the high requirements established for members of the legal profession.’

Other witnesses testified to Konigsberg’s belief in democracy and devotion to democratic ideas, his principled convictions, his honesty and integrity, his conscientiousness and competence in his work, his concern and affection for his wife and children and his loyalty to the country. These, of course, have traditionally been the kind of qualities that make up good moral character. The significance of the statements made by these witnesses about Konigsberg is enhanced by the fact that they had known him as an adult while he was employed in responsible professional positions. Even more significant, not a single person has testified that Konigsberg’s moral character was bad or questionable in any way.

Konigsberg’s background, which was also before the Committee, furnished strong proof that his life had always been honest and upright. Born in Austria in 1911, he was brought to this country when eight years old. After graduating from Ohio State University in 1931, he taught American history and literature for a time in a Cleveland high school. In 1934 he was given a scholarship to Ohio State University and there received his Master of Arts degree in Social Administration. He was then employed by the District of Columbia as a supervisor in its Department of Health. In 1936 he went to California where he worked as an executive for several social agencies and at one time served as District Supervisor for the California State Relief Administration. With our entry into the Second World War, he volunteered for the Army and was commissioned a second lieutenant. He was selected for training as an orientation officer in the Army’s information and education program and in that capacity served in North Africa, Italy, France and Germany. He was promoted to captain and while in Germany was made orientation officer for the entire Seventh Army. As an orientation officer one of his principal functions was to explain to soldiers the advantages of democracy as compared with totalitarianism. After his honorable discharge in 1946 he resumed his career in social work. In 1950, at the age of thirty-nine, Konigsberg entered the Law School of the University of Southern California and was graduated in 1953. There is no criticism in the record of his professional work, his military service, or his performance at the law school.

Despite Konigsberg’s forceful showing of good moral character and the fact that there is no evidence that he has ever been convicted of any crime or has ever done anything base or depraved, the State nevertheless argues that substantial doubts were raised about his character by: (1) the testimony of an ex-Communist that Konigsberg had attended meetings of a Communist Party unit in 1941; (2) his criticism of certain public officials and their policies; and (3) his refusal to answer certain questions about his political associations and beliefs. When these items are analyzed, we believe that it cannot rationally be said that they support substantial doubts about Konigsberg’s moral fitness to practice law.

(1) Testimony of the Ex-Communist.-The suspicion that Konigsberg was or had been a Communist was based chiefly on the testimony of a single ex-Communist that Konigsberg had attended meetings of a Communist Party unit in 1941. From the witness’ testimony it appears that this unit was some kind of discussion group. On crossexamination she conceded that her sole basis for believing that Konigsberg was a member of that party was his attendance at these meetings. Her testimony concerned events that occurred many years before and her identification of Konigsberg was not very convincing. [23] She admitted that she had not known him personally and never had any contact with him except at these meetings in 1941. Konigsberg denied that he had ever seen her or known her. And in response to a Bar Examiner’s question as to whether he was a communist, in the philosophical sense, as distinguished from a member of the Communist Party, Konigsberg replied: ‘If you want a categorical answer to ‘Are you a communist?’ the answer is no.’ [24]

Even if it be assumed that Konigsberg was a member of the Communist Party in 1941, the mere fact of membership would not support an inference that he did not have good moral character. [25] There was no evidence that he ever engaged in or abetted and unlawful or immoral activities-or even that he knew of or supported any actions of this nature. It may be, although there is no evidence in the record before us to that effect, that some members of that party were involved in illegal or disloyal activities, but petitioner cannot be swept into this group solely on the basis of his alleged membership in that party. In 1941 the Communist Party was a recognized political party in the State of California. Citizens of that State were free to belong to that party if they wanted to do so. The State had not attempted to attach penalties of any kind to membership in the Communist Party. Its candidates’ names were on the ballots California submitted to its voters. Those who accepted the State at its word and joined that party had a right to expect that the State would not penalize them, directly or indirectly, for doing so thereafter. [26]

(2) Criticism of Certain Public Officials and Their Policies. In 1950 Konigsberg wrote a series of editorials for a local newspaper. In these editorials he severely criticized, among other things, this country’s participation in the Korean War, the actions and policies of the leaders of the major political parties, the influence of ‘big business’ in American life, racial discrimination, and this Court’s decisions in Dennis (Dennis v. U.S., 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137) and other cases. [27] When read in the light of the ordinary give-and-take of political controversy the editorials Konigsberg wrote are not unusually extreme and fairly interpreted only say that certain officials were performing their duties in a manner that, in the opinion of the writer, was injurious to the public. We do not believe that an inference of bad moral character can rationally be drawn from these editorials. [28] Because of the very nature of our democracy such expressions of political views must be permitted. Citizens have a right under our constitutional system to criticize government officials and agencies. Courts are not, and should not be, immune to such criticism. [29] Government censorship can no more be reconciled with our national constitutional standard of freedom of speech and press when done in the guise of determining ‘moral character,’ than if it should be attempted directly.

(3) Refusal to Answer Questions.-During the prolonged hearings before the Committee of Bar Examiners, Konigsberg was not asked directly about his honesty, trustworthiness, or other traits which are generally thought of as related to good character. Almost all of the Bar Examiner’s questions concerned his political affiliations, editorials and beliefs. Konigsberg repeatedly declined to answer such questions, explaining that his refusal was based on his understanding that under the First and Fourteenth Amendments to the United States Constitution a State could not inquire into a person’s political opinions or associations and that he had a duty not to answer. Essentially, this is the same stand he had taken several years before when called upon to answer similar questions before the Tenney Committee.

The State argues that Konigsberg’s refusal to tell the Examiners whether he was a member of the Communist Party or whether he had associated with persons who were members of that party or groups which were allegedly Communist dominated tends to support an inference that he is a member of the Communist Party and therefore a person of bad moral character. We find it unnecessary to decide if Konigsberg’s constitutional objections to the Committee’s questions were well founded. Prior decisions by this Court indicate that his claim that the questions were improper was not frivolous [30] and we find nothing in the record which indicates that his position was not taken in good faith. Obviously the State could not draw unfavorable inferences as to his truthfulness, candor or his moral character in general if his refusal to answer was based on a belief that the United States Constitution prohibited the type of inquiries which the Committee was making. [31] On the record before us, it is our judgment that the inferences of bad moral character which the Committee attempted to draw from Konigsberg’s refusal to answer questions about his political affiliations and opinions are unwarranted.

B. Advocating the Overthrow of Government by Force.-The Committee also found that Konigsberg had failed to prove that he did not advocate the overthrow of the Government of the United States or California by force and violence. Konigsberg repeatedly testified under oath before the Committee that he did not believe in nor advocate the overthrow of any government in this country by any unconstitutional means. For example, in response to one question as to whether he advocated overthrowing the Government, he emphatically declared: ‘I answer specifically I do not, I never did or never will.’ No witness testified to the contrary. As a matter of fact, many of the witnesses gave testimony which was utterly inconsistent with the premise that he was disloyal. [32] And Konigsberg told the Committee that he was ready at any time to take an oath to uphold the Constitution of the United States and the Constitution of California. [33]

Even if it be assumed that Konigsberg belonged to the Communist Party in 1941, this does not provide a reasonable basis for a belief that he presently advocates overthrowing the Government by force. [34] The ex-Communist, who testified that Konigsberg attended meetings of a Communist unit in 1941, could not remember any statements by him or anyone else at those meetings advocating the violent overthrow of the Government. And certainly there is nothing in the newspaper editorials that Konigsberg wrote that tends to support a finding that he champions violent overthrow. Instead, the editorials expressed hostility to such a doctrine. For example, Konigsberg wrote:

‘It is vehemently asserted that advocacy of force and violence is a danger to the American government and that its proponents should be punished. With this I agree. Such advocacy is un-American and does undermine our democratic processes. Those who preach it must be punished.’

Counsel for California offers the following editorial as evidence that Konigsberg advocates overthrow of the Government by force and violence:

‘Loyalty to America, in my opinion, has always meant adherence to the basic principles of our Constitution and Declaration of Independence-not loyalty to any man or group of men. Loyalty to America means belief in and militant support of her noble ideals and the faith of her people. Loyalty to America today, therefore, must mean opposition to those who are betraying our country’s traditions, who are squandering her manpower, her honor and her riches.’

On its surface this editorial does not appear to be a call for armed revolution. To the contrary, it manifests a strongly held conviction for our constitutional system of government. However, the State attempts to draw an inference adverse to Konigsberg from his use of the word ‘militant’ which it points out in one sense means ‘war-like.’ To us it seems far-fetched to say that exhortation to ‘militant’ support of America’s ‘noble ideals’ demonstrates a willingness to overthrow our democratic institutions. [35]

We recognize the importance of leaving States free to select their own bars, but it is equally important that the State not exercise this power in an arbitrary or discriminatory manner nor in such way as to impinge on the freedom of political expression or association. A bar composed of lawyers of good character is a worthy objective but it is unnecessary to sacrifice vital freedoms in order to obtain that goal. It is also important both to society and the bar itself that lawyers be unintimidated-free to think, speak, and act as members of an Independent Bar. [36] In this case we are compelled to conclude that 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. As we said before, the mere fact of Konigsberg’s past membership in the Communist Party, if true, without anything more, is not an adequate basis for concluding that he is disloyal or a person of bad character. A lifetime of good citizenship is worth very little if it is so frail that it cannot withstand the suspicions which apparently were the basis for the Committee’s action.

The judgment of the court below is reversed and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice WHITTAKER took no part in the consideration or decision of this case.

Mr. Justice FRANKFURTER, dissenting.


^1  Under California procedure the State Supreme Court may admit a person to the bar upon certification by the Committee of Bar Examiners that he meets the necessary requirements. California Business and Professions Code, 1937, § 6064. Section 6060(c) requires that an applicant must have ‘good moral character’ before he can be certified. Section 6064.1 provides that no 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 to the Supreme Court for admission and a license to practice law.’

^2  See also Preston v. State Bar of California, 28 Cal.2d 643, 171 P.2d 435; Brydonjack v. State Bar of California, 208 Cal. 439, 281 P. 1018, 66 A.L.R. 1507.

^3  Rule 59(b) is set out at 36 Cal.2d 43, West’s Ann.Rules on Appeal, rule 59(b). Generally, the California Supreme Court divides its rules into two main parts: (1) ‘Rules on Appeal,’ which govern appeals in civil and criminal cases; and (2) ‘Rules on Original Proceedings in Reviewing Courts.’

^4  The petition asserted:

‘1. That the petitioner sustained his burden of proof of establishing his good moral character and all other requirements established by law in the State of California for applicants for admission to the bar.

‘2. That the committee erred in asserting that the petitioner had failed to meet his burden of proof of establishing his good moral character.

‘3. That no lawful evidence was received or exists supporting the denial of the application of the petitioner.’

^5  He also referred to Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, and Frost & Frost Trucking Co. v. Railroad Commission of State of California, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101.

^6  Cf. In re Investigation of Conduct of Examination for Admission to Practice Law, 1 Cal.2d 61, 33 P.2d 829.

^7  The brief did refer to pages of the record where constitutional arguments were made and cases cited to support them.

^8  People v. McLean, 135 Cal. 306, 67 P. 770; Title Guarantee & Trust Co. v. Fraternal Finance Co., 220 Cal. 362, 30 P.2d 515.

^9  See, e.g., People v. Hadley, 175 Cal. 118, 119, 165 P. 442; People v. Yaroslawsky, 110 Cal.App. 175, 176, 293 P. 815; People v. Buck, 72 Cal.App. 322, 237 P. 63.

^10  Cf. People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184; Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 17 L.Ed. 571.

^11  The record, when read as a whole, shows that Konigsberg took the position that he would answer all questions about his character or loyalty except those directed to his political views and beliefs and to questions about membership in the Communist Party. The record also shows that the Committee made no effort to pursue any other course of interrogation.

^12  Neither the Committee as a whole nor any of its members ever intimated that Konigsberg would be barred just because he refused to answer relevant inquiries or because he was obstructing the Committee. Some members informed him that they did not necessarily accept his position that they were not entitled to inquire into his political associations and opinions and said that his failure to answer would have some bearing on their determination of whether he was qualified. But they never suggested that his failure to answer their questions was, by itself, a sufficient independent ground for denial of his application.

^13  The answer, in pertinent part, read as follows:

‘(P)etitioner was invited to appear at a hearing before the Southern Subcommittee of the Committee of Bar Examiners on the 25th day of September, 1953, at which time he was informed of evidence raising doubts as to his fitness to practice law, and was questioned concerning such evidence and other matters relevant to his qualifications to become a member of the State Bar of California.

‘On or before the 8th day of February, 1954 the Southern Subcommittee of the Committee of Bar Examiners considered all of the evidence which had been presented, and determined that petitioner had failed to show his good moral character so that his application must be denied. On or about the 8th day of February, 1954 said Subcommittee informed the petitioner in writing of the denial of his application and the reasons therefor.

‘On or prior to the 17th day of May, 1954 (the Full Committee) considered all of the evidence which had been introduced and determined that petitioner had not sustained the burden of proof that he was possessor of the good moral character required by California Business and Professions Code, Section 6060(c) and that he had not complied with Section 6064.1 of said Code, so that his application must be denied. Petitioner was notified of this decision and the reasons therefor by letter dated May 17, 1954.

‘Petitioner has not complied with the requirements of California Business and Professions Code, Sections 6060(c) and 6064.1 and so is not entitled to be and should not be admitted to practice law in the State of California.’ (Emphasis supplied.)

As pointed out in note 1, supra, § 6064.1 excludes applicants who advocate the overthrow of the Government of California or the United States by ‘unconstitutional means,’ while § 6060(c) requires that an applicant must have good moral character.

^14  Cf. Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644.

^15  In presenting its version of the questions before this Court, the Bar Committee did not suggest that the denial of Konigsberg’s application could be upheld merely because he had failed to answer questions. Nor was such a position taken on oral argument. Counsel, instead, reiterated what the Bar Committee had contended throughout, namely, that Konigsberg was rejected because he failed to dispel substantial doubts raised by the evidence in the record about his character and loyalty.

^16  Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 77 S.Ct. 752; cf. Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216.

^17  Cf. Local Union No. 10, etc. v. Graham, 345 U.S. 192, 197, 73 S.Ct. 585, 587, 97 L.Ed. 946.

^18  See Jordan v. De George, 341 U.S. 223, 232, 71 S.Ct. 703, 708, 95 L.Ed. 886 (dissenting opinion); United States ex rel. Iorio v. Day, 2 Cir., 34 F.2d 920, 921; Cahn, Authority and Responsibility, 51 Col.L.Rev. 838.

^19  In re Garland, 219 Cal. 661, 28 P.2d 354.

^20  In re Wells, 174 Cal. 467, 163 P. 657.

^21  Spears v. State Bar of California, 211 Cal. 183, 294 P. 697, 72 A.L.R. 923.

^22  This testimony was in the form of written statements. Konigsberg offered to produce witnesses to testify in person but the Board preferred to have their statements in writing.

An instructor at the University of Southern California Law School:

^23  Counsel for the Bar Committee acknowledged this in oral argument. He stated: ‘Now Mrs. Bennett’s testimony left much to be desired, that I concede. Her identification of this man is not all that you might wish.’

^24  Konigsberg gave this answer during the first hearing held by the Committee. He was not represented by counsel at the time. At a subsequent hearing he stated that his earlier willingness to answer this question was inconsistent with his general position that the Committee had no right to inquire into his political associations and beliefs. He said he would not answer if the same question were then presented to him.

^25  Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232. 77 S.Ct. 752; Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. See Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796.

^26  Cf. Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, where this Court struck down an attempt to exclude from the practice of law individuals who had taken up arms against the United States in the War Between the States. See also Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356; Brown and Fassett, Loyalty Tests for Admission to the Bar, 20 U. of Chi.L.Rev. 480 (1953).

^27  For example, petitioner wrote:

‘When the Supreme Court of these benighted states can refuse to review the case of the Hollywood Ten thus making that high tribunal an integral part of the cold war machine directed against the American people-then the enemies of democracy have indeed won a major victory. When the commanders of the last legal bulwark of our liberties all out to the enemy, then the fascists have gone far, much farther than most people think. He who cannot see the dangerous damnable parallel to what happened in Germany is willfully blind.’

^28  In 1948 Konigsberg appeared before the Un-American Activities Committee of the California Senate, commonly known as the Tenney Committee. At that time he sharply criticized this committee, accusing it of subverting the liberties of Americans, and declared:

‘I pledge my word to use every democratic means to defeat you.’

The State points to petitioner’s criticism of this committee as casting doubt on his moral character. What is said in the text disposes of this contention.

^29  Cf. Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192.

^30  See, e.g., United States v. Rumely, 345 U.S. 41, 48, 73 S.Ct. 543, 547, 97 L.Ed. 770 (concurring opinion); Thomas v. Collins, 323 U.S. 516, 531, 65 S.Ct. 315, 323, 89 L.Ed. 430; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628; Cantwell v. State of Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903. 84 L.Ed. 1213; De Jonge v. State of Oregon, 299 U.S. 353, 365-366, 57 S.Ct. 255, 260, 81 L.Ed. 278. A dissenting opinion in Jones v. City of Opelika, 316 U.S. 584, 611, 618, 62 S.Ct. 1231, 1245, 1249, 86 L.Ed. 1691, which was adopted on rehearing, 319 U.S. 103, 63 S.Ct. 800, 87 L.Ed. 1290, declared: ‘Freedom to think is absolute of its own nature; the most tyrannical government is powerless to control the inward workings of the mind.’

^31  Cf. Slochower v. Board of Higher Education, 350 U.S. 551, 557, 76 S.Ct. 637, 640, 100 L.Ed. 692; Sheiner v. State of Florida, Fla., 82 So.2d 657; Ex parte Marshall, 165 Miss. 523, 147 So. 791. And see Ullmann v. United States, 350 U.S. 422, 426-428, 76 S.Ct. 497, 500-501. 100 L.Ed. 511; Opinion of the Justices, 332 Mass. 763, 767-768, 126 N.E.2d 100; In re Holland, 377 Ill. 346, 36 N.E.2d 543; Matter of Grae, 282 N.Y. 428, 26 N.E.2d 963, 127 A.L.R. 1276.

^32  See, for example, text 353 U.S. 264, 265, 77 S.Ct. 729.

^33  California Business and Professions Code, 1937, § 6067, requires:

‘Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.’

^34  Compare the discussion in the text at footnote 25, supra, and see cases cited in that footnote.

^35  Petitioner also contends that it violates due process to make advocacy of overthrow of the Government of the United States or of a State by force, violence, or other unconstitutional means an automatic ground for denying the right to practice law regardless of the reasons for or the nature of such advocacy. Because of our disposition of the case, it is unnecessary to consider this argument.

^36  See Cammer v. United States, 350 U.S. 399, 406-407, 76 S.Ct. 456, 459-460, 100 L.Ed. 474. Compare Chafee, the Harvard Law School Record, Nov. 1, 1950, and Nov. 8, 1950.

Back to Top

Exported from Wikisource CC-BY-SA 3.0

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).