Michigan Law Review Volume 56 Issue 3 1958 Constitutional Law - Due Process - Denial of Admission to the Bar Based on Unwarranted Inferences of Bad Moral Character Jerome B. Libin University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Fourteenth Amendment Commons, Jurisdiction Commons, Legal Ethics and Professional Responsibility Commons, Legal Profession Commons, and the Supreme Court of the United States Commons Recommended Citation Jerome B. Libin, Constitutional Law - Due Process - Denial of Admission to the Bar Based on Unwarranted Inferences of Bad Moral Character, 56 MICH. L. REV. 415 (1958). Available at: https://repository.law.umich.edu/mlr/vol56/iss3/5 This Response or Comment is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. COMMENTS CONSTITUTIONAL LAW-DUE PROCESS-DENIAL OF ADMISSION TO THE BAR BASED ON UNWARRANTED INFERENCES OF BAD MORAL CHARACTER-Power over admission to the bar has long been vest- 416 MICHIGAN LAW REVIEW [ Vol. 56 ed in the judiciary of each state. While the legislature may pre­ scribe certain standards, the state court alone is responsible for the determination of those qualified for the practice of law with­ in its jurisdiction. The application of these standards often de­ mands the exercise of meticulous judgment by the court in reaching its conclusion as to an applicant's fitness. vVhere, on the evidence or lack of evidence presented, the court finds that it cannot in good conscience grant its approval, the candidate is denied admission. To the extent that such a denial appears un­ justified, serious constitutional questions may be raised. Is the state's determination to be final, based on a freedom to select its own bar? Or should the United States Supreme Court review this determination in order to ascertain whether the applicant's exclusion was arbitrary in violation of the Fourteenth Amend­ ment to the Constitution? Two recent cases decided by the Supreme Court, Schware v. Board of Bar Examiners of New lvlexico,1 and Konigsberg v. State Bar of California,2 have shown 1353 U.S. 232 (1957). Schware petitioned the State Board of Bar Examiners for per• mission to take the 1954 state bar examination. His application revealed that he had used certain aliases while a dock worker between 1933 and 1937, and that he had twice been arrested on "suspicion of criminal syndicalism" and also for violation of the Neu. trality Act of 1940. Charges were dropped in every instance. Confidential information obtained by the board indicated that petitioner ·had .been a member of the Communist Party from 1932 to 1940. Schware freely admitted his membership in the party when questioned. The board reviewed the evidence, and, after a formal hearing, denied the application on grounds that petitioner did not have the requisite "good moral character" required by statute of those applying to take the state bar examination. See N.M. Stat. Ann. (1953) ·§18·1·8 and the appended Rules Governing Admission to the Bar. The New Mexico Supreme Court affirmed petitioner's denial. Schware v. Board of Bar Examiners, 60 N.M. 304, 291 P. (2d) 607 (1955). Schware petitioned the United States Supreme Court for certiorari, claiming that the state court's action had deprived him of due process of law, under the Fourteenth Amendment. The Supreme Court, speaking through Justice Black, concluded that there was no evidence which rationally justified a finding that petitioner was morally unqualified to take the examination. Thus, Schware had been denied due process. Justice Frankfurter, with Justices Clark and Harlan; concurred on the ground that the state court was unwarranted in concluding that petitioner's past communist affiliation made him "a -person of questionable character." 2 353 U.S. 252 (1957). The California Committee of Bar Examiners refused to certify Konigsberg for admission to the state bar, on grounds that 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 of California ·by unconstitutional means. See Cali• fornia Business and Professions Code (1937) §6060(c) and (1957 Supp.) §6064.1. At his hearing, .there was evidence that -petitioner had attended Communist Party meetings in 1941. Also introduced were editorials which petitioner had written criticizing certain public officials and their policies. Konigsberg refused to answer any of the committee's questions relating to his political views and communist associations, other .than the direct question, "Do you advocate overthrow of the government of the United States or of this State by force or violence or other unconstitutional means?" His answer to this question was emphatically in the negative. The Supreme Court of California declined to review 1958] COMMENTS 417 that a denial predicated on unwarranted inferences and conclu­ sions, especially with regard to past affiliation with the Com­ munist Party, will be treated as offensive to due process of law under the Fourteenth Amendment. The sweeping language of these opinions appears to indicate that this constitutional protec­ tion to be afforded an individual will by no means be limited to candidates for admission to the bar. I Previous to Schware and Konigsberg, there was a general dis­ inclination on the part of the Supreme Court to consider claims arising under the Fourteenth Amendment in state bar admis­ sion proceedings.3 It was never disputed that the Fourteenth Amendment protects persons from any arbitrary deprivation of their rights by a state, whether relating to their life, liberty, or property.4 A considerable amount of concern, however, has been evidenced as to whether admission to the practice of law properly falls within the scope of the Amendment, i.e., is it "life, liberty or property"?5 That it is not "life" is elementary. In support of the proposition that admission is in the nature of a property "right," it was once felt that every citizen of the United States had a "right" to pursue any lawful calling or Konigsberg's petition, without opinion. On certiorari, the United States Supreme Court speaking through Justice Black, after reviewing the evidence, which included testimonials from 42 persons as to Konigsberg's good character and an unblemished record as a teacher, health office supervisor, social worker and army officer, ruled that Konigsberg · had been denied due process of law. There was nothing in the record which rationally justified a finding that petitioner had failed to establish his good moral character or to show that he did not advocate overthrow of government by unconstitutional means. Justice Frankfurter, dissenting, recommended remanding the case to obtain the California Supreme Court's certification as to whether it had based its decision on constitutional or procedural grounds. Justice Harlan, joined by Justice Clark, dissented •both on the juris­ dictional issue and on the merits. It was his opinion that, since the majority did not rule that the committee's questions were irrelevant or that petitioner was constitutionally privileged in refusing to answer them, the state was justified in refusing admission. It did not violate the Fourteenth Amendment for a bar committee to refuse certification to an applicant who deliberately, and without constitutional justification, obstructed a proper investigation into his qualifications by refusing to answer questions relevant to his fitness. 3 See Bradwell v. Illinois, 16 'Wall. (83 U.S.) 130 (1872). In re Summers, 325 U.S. 561 (1945), involved review of the question whether petitioner's freedom of religion had been violated by the Illinois Supreme Court's denial of admission to the bar. 4 See Dent v. West Virginia, 129 U.S. 114 (1889). 5 O'Brien's Petition, 79 Conn. 46, 63 IA. 777 (1906). See Starrs, "Considerations on Determination of Good Moral Character," 18 UNIV. DETROIT L. J. 295 (1955) • 418 MICHIGAN LAw R.Evmw [ Vol. 56 profession of his choice.6 It later became apparent that a state's grant of membership in the bar was more properly character­ ized as a "privilege burdened with conditions. "7 This charac­ terization would seem to preclude Fourteenth Amendment pro­ tection to a candidate for admission to the bar, unless he can be said to have a guaranteed "liberty" to practice law which can­ not be arbitrarily infringed. This viewpoint has been adopted on occasion. 8 An additional obstacle to the Court's review of cases in­ volving state bar admissions is the desire to allow as much autonomy as possible to the states in determining who is en­ titled to practice before their courts. 9 Just prior to its decision in the principal cases, the Court declined to consider two other cases presenting substantially the same set of circumstances as appears in Konigsberg.10 In some instances, the Supreme Court has acted to protect individuals from arbitrary or discriminatory state action that has prevented them from carrying on a partic­ ular occupation.11 These cases, however, dealt either with legis­ lative enactments or the ministerial issuance of licenses, where no question of judicial discretion was involved. Justice Black, speaking for the Court in both the Schware and Konigsberg cases, skillfully avoided the complexities that develop in attempting a proper classification of admission to the bar. In a rather succinct manner it was made clear that the due process and equal protection clauses of the Fourteenth Amend­ ment are to encompass every case involving a state's denial of 6 Dent v.