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

Mr. Justice FRANKFURTER, dissenting.

Insistence on establishment of the Court's jurisdiction is too often treated, with slighting intent, as a 'technicality.' In truth, due regard for the requirements of the conditions that alone give this Court power to review the judgment of the highest court of a State is a matter of deep importance to the working of our federalism. The admonition uttered a hundred years ago by Benjamin R. Curtis, one of the ablest Justices who ever sat on this Court, cannot be too often repeated: 'Let it be remembered, also,-for just now we may be in some danger of forgetting it,-that questions of jurisdiction were questions of power as between the United States and the several States.' 2 Memoir of Curtis 340-341. The importance of keeping within the limits of federal jurisdiction was emphasized in the opinion of Mr. Justice Stone, for a unanimous Court, in Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248: 'Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute ('the action of Congress in conformity to the judiciary sections of the Constitution') has defined.'

Prerequisites to the power of this Court to review a judgment of a state court are that a federal claim was properly before the state court and that the state court based its decision on that claim. If a state court judgment is rested on a non-federal ground, i.e., on relevant state law, this Court is constitutionally barred from reviewing it. While a State may not, under the guise of regulating its local procedure, strangle a federal claim so as to prevent it from coming before a state court, it has the undoubted power to prescribe appropriate procedure for bringing all questions for determination befoer its courts. Squeezing out of the record in this case all that can be squeezed, the most that the five pages of the Court's opinion dealing with this threshold question can be said to demonstrate is that there is doubt whether or not the claim under the United States Constitution was properly presented to the California Supreme Court, according to its requirements.

Before this Court can find that a State-and the judgment of the Supreme Court of California expresses 'the power of the state as a whole,' Rippey v. State of Texas, 193 U.S. 504, 509, 24 S.Ct. 516, 517, 48 L.Ed. 767; Skiriotes v. State of Florida, 313 U.S. 69, 79, 61 S.Ct. 924, 930, 85 L.Ed. 1193-has violated the Constitution, it must be clear from the record that the state court has in fact passed on a federal question. As a safeguard against intrusion upon state power, it has been our practice when a fair doubt is raised whether a state court has in fact adjudicated a properly presented federal claim not to assume or presume that it has done so. The Court has not based its power to review on guess-work. It has remanded the case to the state court to enable it to make clear by appropriate certification that it has in fact rested its decision on rejection of a federal claim and has not reached its decision on an adequate state ground. Strict adherence to the jurisdictional requirement was insisted upon in Whitney v. People of State of California, the well-known civil liberties case, by a Court that included Justices Holmes and Brandeis, as mindful as any in protecting the liberties guaranteed by the Due Process Clause. Whitney v. People of State of California, 269 U.S. 530, 46 S.Ct. 22, 70 L.Ed. 396; 269 U.S. 538, 46 S.Ct. 120, 70 L.Ed. 400; 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095. See also Honeyman v. Hanan, 300 U.S. 14, 57 S.Ct. 350, 81 L.Ed. 476; cf. State of Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920.

The procedure of making sure, through appropriate certification by a state court, that the federal question was in fact adjudicated, is a safeguard against infringement of powers that belong to the States and at the same time duly protects this Court's jurisdiction to review denial of a federal claim by a state court, if in fact it becomes clear that there was such a denial. This may involve some delay in the final determination of a federal question. The price of such delay is small enough cost in the proper functioning of our federal system in one of its important aspects. This Court has a special responsibility to be particularly mindful of the respective boundaries between state and federal authority.

I would remand the case to the Supreme Court of California for its certification whether or not it did in fact pass on a claim properly before it under the Due Process Clause of the Fourteenth Amendment.

Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.

I share the jurisdictional views of my brother FRANKFURTER. Even so, since the Court decides the case on the merits, I feel it appropriate to deal with it on that basis, since the case is important and my views about it differ widely from those of the Court. I feel impelled to do so, more particularly, for two reasons: (1) The record, in my opinion, reveals something quite different from that which the Court draws from it; (2) this case involves an area of federal-state relations-the right of States to establish and administer standards for admission to their bars into which this Court should be especially reluctant and slow to enter. Granting that this area of state action is not exempt from federal constitutional limitations, see Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 77 S.Ct. 752, I think that in doing what it does here the Court steps outside its proper role as the final arbiter of such limitations, and acts instead as if it were a super state court of appeals.

The following is what I believe to be anaccurate statement of the issue to be decided. California makes it one of its requirements concerning admission to its Bar that no one be certified to the Supreme Court who advocates the overthrow of the Government of the United States or of California by force or violence. It also requires that an applicant be of good moral character. The applicant has the burden of proof in showing that these requirements have been met. Petitioner, under examination by the designated state agency, made unequivocal disavowal of advocacy of the overthrow of the Government by force or violence. With a view to testing the reliability of this disavowal, and the moral character of petitioner, the Bar Examiners questioned him about organizations to which he belonged, especially current or past membership in the Communist Party. Petitioner persisted in refusing to answer these questions despite the entirely reasoned and repeated efforts of members of the Committee to secure answers. His refusals were not based on a claim that the questions were irrelevant to an examination of his fitness under California law. The refusals were based solely on the ground that constitutionally the Committee was limited to asking him whether he advocated the overthrow of the Government by force and violence, and having asked that question, it could ask him no related question.

On the basis of the foregoing circumstances, the Supreme Court of California refused to overrule the finding of the Bar Committee that he had not qualified for admission to the Bar.

The question for this Court is whether in so refusing petitioner admission to the Bar, California through its Supreme Court deprived petitioner of liberty and property without due process.

At the outset there should be laid aside certain things which are not involved in this case. The Court does not find wanting in any respect California's requirements for admission to the Bar that an applicant (a) must be 'a person of good moral character,' and (b) must not be an advocate of the overthrow of the Federal or State Government 'by force, violence, or other unconstitutional means.' Nor does the Court question the state rule of practice placing the burden of proof on the applicant in both respects. The Court does not hold that the First or Fourteenth Amendment entitled Konigsberg to refuse to answer any of the questions put to him by the Bar Committee, or that any of such questions were irrelevant or improper. The fairness of the four hearings accorded Konigsberg is not attacked in any respect. The Court's decision rests wholly on the alleged insufficiency of the record to support the Committee's conclusion that Konigsberg had failed to meet the burden of establishing that he was a person of good moral character and not an advocate of violent overthrow of the Government. The Court says:

' * *  * 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.'

This makes the record important. Before turning to it, however, it will be well to revert to the true character of the issue before us. The Court decides the case as if the issue were whether the record contains evidence demonstrating as a factual matter that Konigsberg had a bad moral character. I do not think that is the issue. The question before us, it seems to me, is whether it violates the Fourteenth Amendment for a state bar committee to decline to certify for admission to the bar an applicant who obstructs a proper investigation into his qualifications by deliberately, and without constitutional justification, refusing to answer questions relevant to his fitness under valid standards, and who is therefore deemed by the State, under its law, to have failed to carry his burden of proof to establish that he is qualified.

I do not understand the process of reasoning by which the Court attempts to make a separate issue out of petitioner's refusal to answer questions, and then, in effect, reads it out of the case because California has not constituted such refusal an 'independent' ground for denying admission. What the State has done, and what the Bar Committee repeatedly warned the petitioner it would do, is to say that the petitioner's refusal to answer questions made it impossible to proceed to an affirmative certification that he was qualified-i.e., that his refusal placed him in a position where he must be deemed to have failed to sustain his burden of proof. Whether the State was justified in doing this under the Fourteenth Amendment is the sole issue before us, and that issue is not susceptible of the fragmentation to which the Court seeks to subject it. I am unable to follow the Court when it says, on the one hand, that on the issue of petitioner's qualifications 'we must, of course, take into account the Committee's contention that Konigsberg's failure to respond to questiosn was evidence from which some inference of doubtful character and loyalty can be drawn,' and, on the other hand, that the Committee was not entitled to treat petitioner's refusal to answer as a failure on his part to meet the burden of proof as to his qualifications.

Of course California has not laid down an abstract rule that refusal to answer any question under any circumstances ipso facto calls for denial of admission to the Bar. But just because the State has no such abstract statutory rule does not mean that a Bar Committee cannot in a particular case conclude that failure to answer particular questions so blocks the inquiry that it is unable to certify the applicant as qualified. In other words, what California has done here is to say that the Committee was justified in concluding that refusal to answer these questions under these circumstances means that the applicant has failed to meet the requirement that he set forth his qualifications affirmatively. Thus I think the Court is quite mistaken in stating that 'the Board itself has not seen fit, at any time, to base its exclusion of Konigsberg on his failure to answer.' I turn now to the State's brief and the record, which show, it seems to me, that failure to answer was the reason for exclusion.

I had not supposed that it could be seriously contended that California's requirements for admission to the bar do not authorize the rejection of a candidate for constitutionally unprotected obstruction of a valid investigation into his qualifications under such requirements. Cf. Schware v. Board of Bar Examiners of State of New Mexico, supra (concurring opinion). And it is unmistakable from the State's brief in this Court that California does claim the right, in the circumstances of this case, to reject the petitioner for his refusal to answer the questions that were relevant to his qualifications under the State's requirements for admission to the Bar. The following appears on pp. 56-59 of that brief:

'Even where no serious doubt arises with respect to an     applicant's qualifications, it is standard practice to      inquire into many personal matters which a person is normally      privileged to keep to himself. Thus, the standard application     form required of all applicants asks the applicant for      details of his past employment, education, whether he was      ever suspended, reprimanded or censured as a member of any      profession or organization, whether he has ever been      arrested, whether he has ever been a party to a lawsuit and      for the details of any incidents of a derogatory nature      bearing on his fitness to practice law. If the answers to     such questions embarrass an applicant, he is privileged to refuse to answer just as he is      privileged to refuse to answer any question on the Bar      examination. However, in either case he runs the risk that     failure to answer such questions will prevent his admission      to the Bar.

'Respondents submit that it is in no sense unreasonable or     improper to require an applicant to cooperate in supplying      all requested information that is relevant to his statutory      qualifications. * *  *

'(a) Good Moral Character:-Reasonable doubts that petitioner     was a person of good moral character arose from many sources:

'(5) Petitioner's refusal to answer questions in such broad     areas of inquiry as to effectively prevent inquiry into broad      areas of doubt.

'Petitioner stated that he did not advocate the violent     overthrow of the government. He thereafter took the position     that any further inquiry by the Committee with respect to      this requirement was foreclosed. This is equivalent to his     appearing before the Committee and stating that he is a      person of good moral character and the Committee must accept      his statement and not inquire further. Even were there no     adverse evidence in the record, respondents could properly      refuse to certify an applicant as not having established his      compliance with *  *  * Section 6064.1, where, as here, he took      the position that his bare answer that he complied with the      requirement foreclosed further inquiry. * *  * ' (Italics,      except as to subheading '(a),' added.)

I now turn to the record which also shows in unmistakable terms that the Committee's primary concern related to the petitioner's persistent blocking of its efforts to test the veracity of his statement that he did not advocate forcible overthrow of government.

The story is best told in the language of the record itself. I shall interpolate only to the extent necessary to put what is quoted in context.

The first hearing before the Subcommittee took place on September 25, 1953. At that time Konigsberg appeared without counsel. After some preliminary inquiries as to Konigsberg's history, and questioning as to his connections with allegedly 'subversive' organizations, the following ensued:

'Q. I assume that you are acquainted with the State statute     that we now have on our books where among other things we are      obliged to inquire into this type of a thing, and where we      find that any people appear to have the views of endeavoring      to change our government and so forth by force or violence,      or in other words the popular conception of communism that we      are expressly prohibited from certifying that person. You are     familiar with the statute? A. Yes, I am.

'Q. Mr. Konigsberg, are you a Communist? A. Mr. Chairman, I     would be very glad to answer that question.

'Q. If you will answer the question, I would be very happy to     have it. A. I would be very glad to answer it if the     circumstances were different. That is when I am faced with a     question of this kind or when anyone else is faced with a question of this kind today what he is faced      with is the fact that various nameless accusers or informers,      or call them what you will, whom he has never had a chance to      confront and cross-examine, he is put in a position of      answering these statements or accusations, or suspicions, and      without any of the protections that ordinarily exist in such      a situation, and I don't think that I can place myself in      that position of having to answer something out in the void,      some statement. I know these statements have been made     obviously. I am not pretending to be shocked or naive about     this. I can say very definitely I did not, I don't, I never     would advocate the overthrow of the government by force or      violence clearly and unequivocably, but to answer a specific      question of that kind, whether I am a member of this party,      that party or the Communist party, that puts me in the      position, whatever the truth is, whether I was or wasn't you      would get a dozen informers who would say the opposite, and      as indicated by an editorial just two or three days ago in      the Daily News questioning seriously why the word of these      informers, these turncoats is accepted unquestionably as      against the word of other responsible citizens. Therefore,     Mr. Preston, I do not think that under these circumstances,      first, yes, I understand that under the law as it is today      you may ask me specifically do I advocate the overthrow of      the government by force or violence. I answer specifically I     do not, I never did or never will. When you get into the     other question of specific views in a political party, it      seems to me only the fact, the right of political opinion is      protected under the First Amendment and is binding on the      states. Certainly attorneys ought to be in the leadership of     those who defend the right of diverse political views. I     think the First Amendment is important. * *  * I answer again on the specific      question of force and violence, I did not, I don't and never      would advocate the overthrow of the government by force or      violence.

'Q. When answering it you don't intend to give us a specific,     categorical responsive answer? A. As I said I would be very     happy to if we met out in the hall. I would be glad to answer     you, but you see under these circumstances, that is I am      speaking now under oath and I am speaking for the record, I      am speaking against in a sense whatever evidence that may be      in the files-I shouldn't dignify it by calling it evidence; I      should say whatever statements may be there from various      informers. I have told you about my record both in the Army     and in the community. I have been active politically, I admit     it. I am proud of it. I would be happy to discuss it. This is     the record that I think should be the basis for judgment, not      the record of some hysterical characters that appeared before      the Tenney Committee or any such group.

'Q. I am not asking anyone else. I am trying to ask you     because you are the one who is seeking admission, the      privilege of practicing law in this state. That is the reason     I am asking you the question. I made the question very broad,     and what I would like you to tell us, if you will answer the      question; now of course as you well know and you have told me      in your answer up to this point, you don't have to answer the      question, of course you don't have to answer the question,      but we feel that on a matter of this kind, this kind of      information, we have a job to inquire about your character. The statute says character, it doesn't say reputation. The     only way I can find out and aid this Committee in finding out      about your character is to ask you these questions, not what someone else thinks about you, your reputation. That     is the reason I have asked the question. Could you give us a     categorical answer? A. I can only give you the answer I have     given you, and I would be very happy to answer that under      other circumstances.'

At this point Konigsberg stated that his refusals to answer rested on rights of 'free opinion, free speech,' and that the legal profession should be the champion of 'the right to diverse political opinion.' He was then asked whether he had 'ever knowingly participated in an organization which (he) then believed was sympathetic to the communistic cause,' to which he replied that 'I can't say I knowingly did that, because I don't think it would have made a great deal of difference to me if I had known one way or the other' if the organization's objectives were what he believed in, 'say a better School Board or whatever the issue might have been.' Then followed this:

'Q. Mr. Konigsberg, I assume that you know that your name has     been listed in the public press by witnesses before the      Congressional Un-American Activities Committee. A. Yes.

'Q. And have been identified by persons who said that you     were a member of the Communist Party at the same time they      were. A. I saw that report. That is the sort of thing I was     referring to a moment ago when I referred to the various      accusations.'

Next there was discussion as to the attitude of the Association of American Universities with reference to teachers claiming the Fifth Amendment privilege against self-incrimination:

'Mr. Sterling: Let me try to clarify it as I understand it. This Association of Universities takes the position that complete candor on the part of the teacher with     respect to his political beliefs, and in particular whether      or not he subscribes to the beliefs of the Communist Party is      a prerequisite to continuing in the teaching job. He doesn't     have to disclose whether or not he is a Communist or is      sympathetic to the Communist beliefs, but that if he doesn't      answer those questions with complete candor he has lost his      right to a position in the teaching community. Translating     that into terms of an Association of lawyers such as our      State Bar or any Bar Association, you are seeking admission      to the profession and that we as your prospective colleagues      have a right to expect complete candor from you on this      particular question, and that if you don't wish to be      completely candid with us then we are justified in saying you      don't belong in our profession. That I think is the stand     that the American Universities took. A. I understand that. I     can only say what I said several times already. Under those     circumstances the constitutional guarantee of free speech      means nothing, if it doesn't mean you can keep your views to      yourself, and certainly lawyers recognize that and should be      among the first to defend that right. I think the legal     profession, particularly the leaders of the legal profession,      should be the first to insist on it. Put another way, of what     meaning is any constitutional guarantee if it becomes a crime      to invoke that guarantee?'

This answer was then elaborated by the petitioner at some length, after which the record continues as follows:

'Mr. Sterling: If you accept as true the premise that the     Communist Party, as it is embodied in the present Soviet      Union government, has for its objective the overthrow of not      only the government of the United States but any other noncommunist government, and that      that overthrow may be accomplished either from within by a      bloodless revolution or if necessary by force, if you accept      that premise then I think that your argument about      constitutional rights of free speech and right to have your      own political views and so on go by the board because then it      seems to me that we are asking you no more than whether or      not you belong to or believe in the principles of such an      organization as Mafia, which is pretty generally, I think,      regarded as one which has objectives that can be accomplished      according to their tenets by what we regard as criminal acts. Now if I asked you whether or not you believed in the right     to murder you would answer me no, I think, but as I say this      whole business seems to be a turn on whether you accept the      premise that the Communist Party-I am paraphrasing for the      purpose of illustration-if you accept the premise that the      Communist Party believes in murder and has that as its      objective then I don't think you have a right or      justification to refuse to answer the question of whether you      belong to the Communist Party or whether you believe in its      principles, you see. A. Well I can't argue with you.

'Mr. Sterling: Well, you can say that you think my premise is     wrong. You can say the Communist Party as constituted does     not believe in the overthrow, is not trying to and does not      have as its objective the overthrow of the United States by      one means or the other. Then I simply have to disagree with     you because it seems to me that is their objective. A. Well,     are you suggesting, Mr. Chairman, that since of course this      is a critical period in our country's history that in the      face of such threats as you are basing your premise on that      we have to forego then the use of the constitutional privileges or the      protection of the Constitution, is that what your proposal      is? I would like to understand your argument.

'Mr. Sterling: No, as I say you don't feel there is any     question of constitutional privilege when in a proceeding      such as this where we are charged with determining the moral      qualifications of an applicant in the profession, you don't      feel that the constitutional privilege is hurt if I ask you      if you believed in murder? A. No.

'Mr. Sterling: You will answer that unhesitatingly, 'No, I     don't believe in murder.' So I say that most of us now accept      as true the premise that the Communist Party as we know it      and as embodied in the Russian Government, the present Soviet      Union Government, does have as its objective world domination      by the Communist Party. So we accept that premise. Therefore     it seems to us that we have the right to ask the question of      applicants for admission to the Bar, because our statute as      we pointed out says that you are not qualified if you do      believe in overthrowing or advoate the overthrow of the      United States by force or violence. A. I am answering     specifically in terms of that statute too that I do not. That     is the question you are asking me specifically. I am     answering I never did, I do not and I never would advocate      the overthrow of the government by force or violence. I do     believe like leaders like Jefferson people should have the      right through discussion, ballot, the minority view becomes      the majority view, that changes like that are sought through      the ballot box but never through force and violence. That I     do not believe. I think my whole experience has shown that. I don't know how more direct that can be, and the only reason     as I said before that I don't specifically answer the      question, 'Are you a member of this political party?' is      because of the situation anyone is in who is faced with      accusations as indicated by the newspaper report, accusations      by people who I think are gradually being discredited by many      sources, when you don't know who it is who is accusing you,      you don't know on what evidence, anonymous faces, you never      have a chance to cross examine them, how can anyone be put in      that position? What can you fight except wind-mills and air     in such a situation. The direct question, 'Do you believe in     force and violence?' I answered that.

'Mr. Black: It still puzzles me a little to see why it is     that you think you are prejudicing your own position by      taking a position on that irrespective of whether there is      any other evidence in the file or not. A. Because very     practically this as you know has happened before. In the     theory of today it is the words of these informers that is      accepted above the words of anyone else.

'Mr. Black: How do you know? A. The newspaper report says so. Isn't that the report you were referring to where I was named     before the Un-American Activities Committee?

'Mr. Preston: Yes, but that doesn't answer the question.

'Mr. Black: How do you assume this Committee accepts the     hearsay report against your direct testimony? A. I am not     assuming that. I didn't mean to give that implication. What I     am saying is that where on one side we have these hearsay      reports and nameless informers, and I don't need to go into a discussion of how willing they are to sell their evidence, if      it is evidence, when there is the possibility of their word      being placed against my word or anyone in my position, and      because in view of the hysteria today their word is accepted. All it has to do is appear in the paper and you are     discredited. Wasn't it two or three weeks ago in San     Francisco a woman won an amount in a suit for being called a      'Red,' a teacher, when it is prima facie-libel, whatever the      case was. Then it becomes not only a basic matter of     principle on the First Amendment but a matter of protecting      yourself in a legal situation, because this is an official      body. I am not talking to a group of people like I would be     talking to on the street.

'Mr. Sterling: You are afraid if you answer the question as     to membership in the Communist Party in the negative and say,      'No, I am not a member and I never have been,' assuming you      made that answer, you are afraid that we could find half a      dozen people who would say that you were and had been, and      therefore if you were on a perjury trial and the jury      believed them and not you, you committed perjury. A. I am     saying no matter what answer I gave whether I was or wasn't,      undoubtedly there would be several whom you could get to say      the opposite, and as I said before-

'Mr. Sterling: Subjecting you to a perjury charge? A. Yes. As     I said before if you want to ask me outside in the hall I      will tell you, but in view of these circumstances where you      just have no right, you have no opportunity rather, to defend      yourself against these people, I don't think that is fair      play. I don't think that is justice. I don't think it is what     the American democratic system teaches.' At this point Konigsberg testified that he did not recall knowing a Mrs. Bennett (formerly Mrs. Judson), the Subcommittee's next witness, the following occurring just before she testified:

'Mr. Preston: Is there any further statement you wish to     make, Mr. Konigsberg? A. By the Witness: I can't think of     anything I could add to what I said unless there is some      specific point you want me to enlarge on.

'Mr. Preston: I assume, of course, if I ask you the question     as to if you were ever a member of the Communist Party you      would give me substantially the same answer. A. Yes, I think     I would.

'Mr. Preston: You observed, I assumed, Mr. Konigsberg, I     didn't ask you in the first instance if you were a member of      the Communist Party. I asked you if you were a Communist. I     recognize there is a philosophical Communist. I made my first     question very broad to include that. A. I understood you to     say a member of the Communist Party.

'Mr. Preston: Would your answer be any different? A. I     thought you said a member of the Communist Party.

'Mr. Preston: I deliberately did not. The first question we     discussed at length is, 'Are you a Communist?' A. I will say      no, definitely no. The only thing I would describe myself      very simply as one who has read a lot, studied a lot, because      as a teacher of history and political education in the Army I      believe strongly in the fundamental concepts of our      democratic system.

'Mr. Preston: Your answer that you gave was directed to  the question, 'Are you a member of the Communist Party?'   A. Yes, and solely to that. If you want a categorical  answer to 'Are you a Communist?' the answer is no.

'Mr. Preston: You gave us that.

'Mr. Sterling: That is your answer.

'A. By the Witness: No.

'Mr. Black: Would you care to state whether you have ever     been a Communist? A. Do you mean by that as he is making the     distinction philosophically or a member of the Communist      Party?

'Mr. Black: I mean in the same sense you have just answered     that you are not now a Communist. A. I would say my thinking     has only been what I described a moment ago as being based on      the elementary concepts of the American democracy, assuming      that you mean do I think like a Communist; that is assuming      we have some common understanding what you mean by that term.

'Mr. Sterling: We are not talking now about a membership in     any party. A. Yes, philosophical views.'

Mrs. Bennett, an ex-Communist Party member, then testified, in the presence of Konigsberg, that Konigsberg had attended in 1941 meetings of the party unit of which she had been a member.

The next hearing was on December 9, 1953, which was attended by Konigsberg's counsel, a Mr. Mosk. This hearing was devoted in part to the cross-examination of Mrs. Bennett by Mr. Mosk, the net of which was that Mrs. Bennett admitted that she recognized Konigsberg when she first came to the earlier hearing only after not seeing anyone else in the room with whom she was familiar. After general colloquy as to some of the petitioner's writings, the questioning returned to Konigsberg's refusal to answer questions concerning his alleged membership in the Communist Party, this time with particular reference as to how petitioner reconciled his First Amendment claim with his willingness to answer ideological questions, but not questions as to whether he had ever been a member of the Communist Party. The record continues:

'Mr. Freston: May I ask a question of counsel?

'Mr. Sterling: Yes.

'Mr. Freston: One of the things that was bothering me, Mr. Mosk, is the general answer we have received to the question     concerning present and past Communist affiliation, and I      recognize the objection that counsel raises under the First      Amendment.

'Mr. Mosk: The witness.

'Mr. Freston: The witness has raised. The thing that troubles     me is we have an affirmative duty under the statute to      certify as to this applicant's good moral character. We have     endeavored to point out to him that the burden of showing      that character is upon him. It appeared to me that he wasn't     being quite forthright with us in not giving us an answer to      those questions. He stated in effect his reason, at least as     I understood it, that he did not want to answer the questions      because he might sometime be accused of or prosecuted for      perjury. Now, that is the rationale as I remember it, and     frankly I am left in a rather confused state. As a member of     this Committee I have to take an affirmative act of      certification as to a good moral character. I wonder if you     could perhaps enlighten me or help clarify the situation so      perhaps maybe I might understand it better.

'Mr. Black: May I interpose another question directed to the     same point, and you can answer them at one and the same time. Just to make sure that I understand     the witness' position, at the last hearing-Mr. Konigsberg's     position-as I understood he was perfectly willing to deny      categorically he is a Communist and took that position, am I      right on that?

'The Witness: I said philosophical Communist.

'Mr. Black: It seems to me that question we wouldn't have a     right to ask you under your argument, but that we would very      definitely have a right to ask you whether you are now a      member of the Communist party as it is commonly understood. Now, am I right on that that you still take the position that     there is no objection to your answering us categorically that      you are not now a Communist, namely that you don't believe in      the philosophical doctrines of communism, generally speaking,      that is a matter of belief?

'The Witness: I think I understand your question.

'Mr. Black: But you do take the position that we do not have     the right or you have no obligation to answer the question,      'Are you now a member of the Communist party?' and that you      refuse to answer. I am not trying to argue. I just want to be     sure I understand your position. Am I correct in that?

'Mr. Mosk: Either way. The first question was addressed to     me. * *  * (W)e are endeavoring to address ourselves to that      issue which we feel most pertinent that is 'What has Mr.      Konigsberg done as an individual with relation to the people      with whom he has dealt, the occupations and professions that      he has followed, what has he done to show affirmatively that      he is of good moral character and would be a good member of      the Bar?'

'Now, as I understood Mr. Konigsberg's position it is his     feeling that one of the matters of principle on which he has always stood is the principle that one may      not inquire as to a person's belief, religious, political or      otherwise, and that by answering such questions as they are      being asked throughout the country in these days, and in all      sorts of places and under all sorts of circumstances, as I      understand Mr. Konigsberg's position that by answering such a      question he is in effect giving way to and giving ground on      the principle that one may not be asked these things, and      that by his failure to answer he is neither affirming nor      denying.

'Now as to the second question, which I think is most     pertinent and certainly struck me at the moment when I read      through the transcript for the first time, I was struck by      exactly that same question, and I asked Mr. Konigsberg about      it, and I think that perhaps he should answer this himself,      but we did discuss this very matter, and I know that his      position is now that if you were to ask the same question      today he feels that it is a question he should not have      answered, and that by way of principle in coming unprepared      he did not think through the principle to that extent. I     think I am answering correctly.

'The Witness: That is exactly what I told counsel. As you are     aware I came in without counsel, without any preparation,      without knowing exactly what I might be asked. I did have an     indication since I had informed the Committee, I appeared      before the Tenney Committee, that I might be asked about      that. I came prepared with nothing. In the heat or in the     tension of a meeting of this kind, as you are aware, very      often one will say things that one regrets later or would      have said later. If I were asked that today I think my answer     would be the same as to the other question as to whether I am or am not a member of the      Communist party, or whether I ever was.

'Mr. Black: I might say without expressing my own view on the     thing that I think it must be obvious to you at least under      popular conception there is a distinction between what a man      believes in a doctrinaire's sense, which I think everybody      agrees who at least tries to follow American principles is      sacred ground as to his individual concepts. The belief of     the doctrines on the one side, and at least in popular view,      affiliation with a party that has its policies dominated by      the Soviet Union is quite a different conception, and that      the argument at least is that inquiry goes to the very      essence of a man's loyalty to the country and has nothing to      do with his individual beliefs in the matter of religion or      political philosophy or a code of ethics, and that is the      distinction that we are trying to get at here.

'The Witness: I think you are quite right, and the position     you take is quite correct, and I confess that I was in error      at the time again due to the tension of the moment, and as I      was going to say I don't think Mr. Freston's recollection is      correct. I did not say that I was giving the kind of answer,     was giving or refusing to answer because I was afraid of a      perjury charge, as I recall. That is not the basis of refusal     or the type of answer I have given. The reason that perjury     discussion came up, as I recall now-I haven't been thinking      about it-was in connection with the nature of the hearing      where a person does not have the opportunity to cross examine      and confront witnesses or see documents or things of that      nature, and it so happens in the case of Owen Lattimore, who      faced a perjury charge, even though he denied a half dozen      ways any association with subversive elements-I am recalling      from memory- it had to do with whether he expressed a certain opinion. How     is a man to remember what opinions he expressed. His appeal     is pending at the moment for his conviction of perjury. It is     only with reference to that situation that I mentioned or      commented upon the element of perjury, because that has      nothing to do with the basis for my giving the kind of answer      I am giving to the question as to my political affiliation,      none whatsoever. You correct me on the record if I am wrong. That is my recollection of that discussion. At least I would     like to say for the record that has nothing to do with the      type of answer I have given.

'Mr. Wright: I would like to ask a question that perhaps in     some stage of this proceeding you might enlighten at least      this member of the Committee on, whether you consider inquiry      into present membership in the Communist party as at all      relevant in the inquiries of this Committee as to moral      character? In other words, is it a relevant factor? Does it     have any bearing? Is it a proper scope of inquiry?

'Mr. Mosk: I think you have to draw this distinction. It may     be under some circumstances the Committee would feel that it      would be a type of information that it would like to have to      reach its conclusion, and to that extent perhaps it may be      considered relevant, but many relevant matters are not      inquired into in legal proceedings because for other reasons      those matters are not competent testimony. And it is the     position of Mr. Konigsberg here that inquiries into the realm      of his political, religious or other beliefs are matters that      are protected under the First Amendment to the Constitution,      and therefore while it may be information which the Committee      would feel it would like to have it is a field in which the      Committee may not inquire by Mr. Konigsberg's position, and I think therefore perhaps I am answering your      question yes and no, but I think I make my point clear as to      what position Mr. Konigsberg takes.

'Mr. Wright: Having felt that we would like the information     and being denied, now I won't argue with you that being      denied that we have no way of compelling it, but are we      therefore faced with going forward?

'Mr. Mosk: I think that also is a fair question, and that is     why we are approaching the hearing in the manner in which we      do. * *  *

' * *  * I could, I know, bring responsible social workers,      other lawyers, persons at the universities with whom he has      dealt, all of whom are prepared to come and say that they      have known him in these various capacities, and that on the      basis of the things that he has done himself, not what      someone else has done, but what he, Raphael Konigsberg, has      done that he is of good moral character to become a member of      the legal profession, and these are things that as I say we      will submit affirmatively, and it seems to me that this is      the affirmative answer to what I can well understand the      Committee feels is a void which Mr. Konigsberg, for reasons      of principles he does not feel he wants to fill, but I think      that even there one must always have respect for people who      at recognizing the danger to him in standing on his principle      is still prepared to do that in order to carry out things      that he believes in so firmly.

'Mr. Wright: I commend his moral principle, let me say, but     perhaps have a little doubt for his judgment.

'Mr. Mosk: If I may comment on that also I think that     certainly-

'Mr. Wright: He is making it extremely hard for the     Committee.' The third, and last, hearing before the Subcommittee occurred on January 27, 1954. At this time the letters from character witnesses were presented, and there ensued general colloquy as to the scope of a memorandum to be filed by Mr. Mosk. The record shows the following as to the Subcommittee's concern over Konigsberg's refusal to answer:

'Mr. Wright: Thank you, Mr. Mosk. I was wondering whether or     not you in the course of your memorandum you had addressed      yourself at all to the problem of the disinclination of the      applicant to respond to questions proposed by the Committee.

'Mr. Mosk: I have addressed myself to that. The memorandum,     however, is not lengthy and if you wish I would like to say      just a brief word in addition then on that point.

'Mr. Wright: That is one thing that frankly bothers me that     we discussed in our previous hearing.

'Mr. Mosk: I can understand why that is a matter that does     bother you. I think that I indicated at the previous hearing     by analogy one of the answers that I feel is pertinent to      this. I indicated, and I feel that in every judicial     proceeding and every legal proceeding there are many matters      that the tribunal would like well to know to assist it in      reaching its conclusion.

'Now, it is implicit in what I have said up until now that     matters of the political, economic and social nature, matters      of the mind, cannot become the standards upon which the      decision as to whether an applicant is of good moral      character can be predicated. There are basic principles as to     whether the Committee or any other tribunal may inquire into      matters of the mind and thinking.

'Now, Mr. Konigsberg is obviously, as indicated by many  of these letters, and has always been a man of great   principle, and I feel that the Committee, since it is   our position that it may not inquire into these fields   must not make its decision based on Mr. Konigsberg's   principal refusal to answer questions in a field in   which the Committee may not inquire. And this  fundamentally is our answer that these are matters which   can have no bearing on his moral fitness to practice   law, and since they cannot I think it then becomes even   a greater indication of the extreme principles upon   which this man stands, and an even greater indication   that as a lawyer he will be a credit to the legal   profession'

The Subcommittee having reported unfavorably, a hearing to review its recommendation was held before the full State Bar Committee on March 13, 1954, at which Konigsberg read a prepared statement, following which the record shows the following:

'Mr. Fuller: What organizations do you presently belong to?

'Mr. Mosk: To which I object on the grounds that this is a     violation of the witness's rights under the First Amendment      of the Constitution.

'Mr. Fuller: You mean to say that he shouldn't tell us     whether he belongs to the Elks or the Masons or things of      that sort?

'Mr. Mosk: That would be my position.

'Mr. Fuller: We can't determine any organization he belongs     to? He doesn't have to answer at all?

'Mr. Mosk: That would be my position that his beliefs and     associations are not within the scope of this hearing.

'Mr. Fuller: It does not necessarily relate to beliefs. We     all know many organizations are not based on beliefs. I think we are entitled to know who he     associates with.

'Mr. Konigsberg: I respectfully say that you are not entitled     to know my associations and any person may refuse to answer      on the basis of the rights of a citizen under the First      Amendment which I have previously referred to in my      testimony.

'Mr. Konigsberg: May I ask this question, Mr. Chairman: Is it     the Committee's position (and I would sincerely like to know)      that it has the power to ask such a question and that      questions relating to opinions do have a bearing on the      applicant's moral character?

'Mr. Fuller: I don't want to put it on that basis. It is my     position, not necessarily the entire Committee's position,      that we have a rather general scope of inquiry to determine      whether an applicant tells the truth, for one thing. I think     that is a factor in determining whether or not he is morally      qualified. He may state that he is not now a Communist, if he     has been a Communist in the past, and if we believe he is      telling the truth, that will have a bearing on our      determination. I think we have the right to test the veracity     of the applicant to the extent that if he denies that, I am      influenced in the final conclusion I will come to, that I      haven't determined yet. I do think that the applicant who     wishes to afford us the facilities for determining his moral      character to the utmost, should permit us to test his      veracity.

'Mr. Konigsberg: Mr. Chairman, in all sincerity I have     attempted to show in my initial analysis that under Section      6064.1, that I think sets the limit to any inquiry that any      body of Examiners has. Once you ask 'Do you now?,' does that     person advocate the overthrow by force, violence, or other unconstitutional      means, and he answers, as I have answered, that he does not,      you cannot ask any questions about his opinions. You are not     empowered to ask any questions. There is some question as I     pointed out in my statement whether this is constitutional      even to allow it to this extent.

'Mr. Fuller: Do I understand that it is your position, and I     think I understand your position, that we should not go ahead      and find out whatever information we can obtain in order to      make the best decision?

'Mr. Konigsberg: I make this point which I did not make     before that I don't think constitutional such action, to draw      inferences of the truth or falsity of any statements based on      the position (whether of the First or any other Amendment)      which the applicant takes. For the Bar to maintain the     position, as the Chairman is doing, that it does have the      right to ask about my opinions (at least as he is doing this      afternoon), as I pointed out these opinions and beliefs which      have been expressed coincide with those of prominent leaders      of the Bar, which they are expressing today *  *  *. I am     wondering if that is the position the Committee wishes to      take.

'Mr. Fuller: There is no position of the Committee. I am only one member. We are conducting an impartial examination.

'A lady by the name of Bennett testified here. You heard her     testimony. Is there any part of that testimony you wish to     deny?

'Mr. Konigsberg: Well, again, Mr. Chairman, that is the same     question. That is a question relating to opinions, beliefs,     political affiliations.

'Mr. Fuller: It has nothing to do with beliefs.

'Mr. Konigsberg: It certainly is related to political  organizations, political activity, however you choose to   describe it.

'Mr. Fuller: Do you want to read it again?

'Mr. Konigsberg: I recall it.

'Mr. Fuller: Do you wish to deny any part?

'Mr. Konigsberg: I wish to say that any questions relating to     such political affiliation, which the testimony dealt with *      *  *

'Mr. Fuller: You refuse to affirm or deny her testimony?

'Mr. Konigsberg: The Committee is not empowered to ask with     regard to political affiliations or that type *  *  *

'Mr. Fuller: I am calling your attention to the fact part of     it is not connected with political beliefs or associations.

'Mr. Konigsberg: Which part?

'Mr. Fuller: You are free to read it.

'Mr. Konigsberg: If you wish, I shall be glad to.

'Mr. Fuller: If you want you may either affirm or deny     anything if you need to do that. We want to afford you the     privilege. (Witness read the testimony referred to)

'Mr. Konigsberg: Mr. Chairman, I think I would recall all the     questions relating to me. She answered a number of questions     not relating to me. All relating to me are based on a matter     of political affiliation or opinion and political association      and I think that is amply covered under the protection of the      First Amendment as I referred to a moment ago. The     Committee's rights to inquire about this matter are limited      to one, the present personal advocacy of the overthrow by      force or violence or other means as set forth in 6064.1.

'Mr. O'Donnell: Are you a member of the Communist party  now?

'Mr. Konigsberg: How does that differ from the questions     asked before?

'Mr. O'Donnell: I would just like you to answer it.

'Mr. Konigsberg: The answer is the same I would give. The     Committee is not empowered to inquire any more than they may      inquire whether I am an Elk, a Freemason, a Democrat or a      Republican. It might become incriminating to be a member of     the Democratic party today, like saying all Democrats are      traitors.

'Mr. O'Donnell: Have you ever been a member?

'Mr. Konigsberg: I would give the same answer.

'Mr. O'Donnell: You refuse to say whether you now are?

'Mr. Konigsberg: I refuse on the ground that the Committee is     not empowered to question anyone about political opinions or      affiliations, whether past affiliations or present ones. I     say this can have no bearing on moral qualifications to      practice law, unless the Committee is prepared, as I said in      my statement, to take the position that it is now a crime in      California to have opinions different than general popular      opinions or conforming opinions.

'Mr. Fuller: Of course, the Committee takes the position it     is doing so affirmatively, when it goes before the Supreme      Court and states you have the proper moral character and we      feel we have the right to inquire very deeply into that      because it is an affirmative obligation on our part.

'Mr. Konigsberg: I think, Mr. Chairman, on that point the     court has said-

'Mr. Fuller: We may be wrong. The Supreme Court may tell us     otherwise but that is the way it appears at the moment.' Finally, the Committee put to Konigsberg these questions:

'Mr. Whitmore: It is not your contention, is it, Mr. Konigsberg, that the only basis which the Committee may rely     on in determining whether or not it can certify you under the      provisions of 6064.1 is by asking you the questions and      getting a yes or no answer. It is not your position that that     is the extent of the right of this body in making its      determination under 6064.1?

'Mr. Konigsberg: In essence, that is it. My interpretation of     that code section is simply that it sets the limit as to      whatever questions relating to opinion-because that is      obviously a political issue-there may be asked by the Bar      Examiners. It sets the limit as I interpret it. I may be     wrong, as I think the Subcommittee is wrong; because of the      history of this act as I have related it the Committee can      only ask 'Do you now personally advocate the overthrow of the      government of the United States or of this State by force or      violence or other unconstitutional means' and if I say 'No,'      'Yes' or whatever it may be, that is as far as you can go;      that is without raising the question on this point (which I      don't think is pertinent) as to whether that is even      constitutional under the First Amendment.

'Mr. Whitmore: You are saying that the Committee is precluded     under Section 6064.1 from considering acts or omissions of      yours in the past with respect to that problem?

'Mr. Konigsberg: Yes, I think so. I am saying they can only     ask do I advocate the overthrow by force or violence or other      means.

'Mr. Whitmore: You are contending that we are bound by your     answer of yes or no which you give.

'Mr. Konigsberg: You can decide for yourselves whether I  am telling the truth. You can use any means of  determining the truth. You don't have to accept any  individual's yes or no answer as the truth. I think that  is understood.

Mr. Maxfield: Doesn't your answer right there defeat the only     purpose if we can cross examine as to the truth or falseness      of that statement? Why can't-

'Mr. Konigsberg: I didn't say you could cross examine me as     to the truthfulness. The question as I understand it was     whether the Committee couldn't consider other things,      records, past acts.

'Mr. Whitmore: Acts or omissions.

'Mr. Konigsberg: Anything in my record to evaluate whether I     am telling the truth, certainly.

'Mr. Maxfield: The general principles of cross examination     testing the veracity of a statement, those you know under the      rules of evidence are pretty broad. Do you deny us the right     to ask these questions for that purpose?

'Mr. Konigsberg: Again under the rules of evidence there     might be many items of hearsay, fact or whatever it might be,      which the court would like to know but the court prevents the      prosecution or the other side from introducing because of a      deep-seated public policy or other evidentiary rule or the      First Amendment. The rule of search and seizure is something     else of that nature. The information might be pertinent but     the court says that the results of such act, as established      over the years, may not be asked or introduced.

'It is my contention as I tried to make clear-(it might be     unconstitutional, I am not questioning that now)-it may only      go as far as this law permits you to go. The history of that     act shows that the Legislature tried to do other things but failed to because it      failed of passage. And a person can be asked (such people as     myself) 'Do you?' than (sic) the Committee must determine and      evaluate as to the truth by what is in the individual's      record.

'Mr. Maxfield: We are not entitled to an evaluation of that     truth or in an effort to evaluate it to cross examine you      with respect to present or past associations?

'Mr. Konigsberg: That is right. That is my interpretation.'

On February 8, 1954, the State Bar Committee refused to certify Konigsberg for admission, and the California Supreme Court denied review on April 20, 1955.

So ends the story. Whatever might be the conclusions to be drawn were we sitting as state judges, I am unable to understand how on this record it can be said that California violated the Federal Constitution by refusing to admit petitioner to the bar.

The members of the Committee before whom the petitioner appeared were under a statutory duty to inquire into his qualifications for admission. Among the matters into which they were obligated to inquire were moral character and the applicant's advocacy of forcible overthrow of the Government. Petitioner stated readily enough that he did not advocate overthrow of government by force, violence, or other unconstitutional means. But once that basic question was answered he took the position that the Committee's authority was exhausted; that it had no power to ask him about the facts underlying his conclusory denial or to test his response by cross-examination. The Court holds that the State's conclusion-that an applicant who so obstructs the Committee has not met his burden of proof in establishing his qualifications of good moral character and non-advocacy of forcible overthrow-violates the Fourteenth Amendment.

I think this position is untenable. There is no conceivable reason why the Committee should not attempt by cross-examination to ascertain whether the facts squared with petitioner's bare assertion that he was qualified for admission. It can scarcely be contended that the questions were irrelevant to the matter under inquiry, namely, whether petitioner advocated forcible overthrow of the Government. At least it seems apparent to me that Communist Party membership is relevant to the question of forcible overthrow. In fact petitioner himself admitted that the questions were relevant, relying entirely on his First Amendment privilege. Yet the Court assumes, for the purposes of this case, that the questions did not invade an area privileged under the First Amendment. In other words, we have here a refusal to answer relevant and unprivileged questions.

We are not dealing with a case where the State excludes an applicant from the bar because of bare membership, past or present, in the Communist Party. The Schware case attests that that is a wholly different question. Nor are we dealing with a case where an applicant is denied admission because of his political views. We have here a case where a state bar committee was prevented by an applicant from discharging its statutory responsibilities in further investigating the applicant's qualifications. The petitioner's refusal to answer questions in order to dispel doubts conscientiously entertained by the Committee as to his qualifications under a valid statutory test can, it seems to me, derive no support from the Fourteenth Amendment.

The principle here involved is so self-evident that I should have thought it would be accepted without discussion. Can it really be said that a bar-admissions committee could not reject an applicant because he refused to reveal his past addresses, or the names of his former employers, or his criminal record? An applicant might state with the utmost sincerity that he believed that such information was none of the committee's business; yet it must be clear that his application could be rejected. And in such a case the committee would not have to point to 'evidence' establishing either that the applicant had bad moral character or that he was asserting the constitutional privilege in bad faith. For the applicant is the moving party, and his failure to go forward is itself sufficient to support denial of admission.

For me it would at least be more understandable if the Court were to hold that the Committee's questions called for matter privileged under the First and Fourteenth Amendments. But the Court carefully avoids doing so. It seems to hold that the question of privilege is irrelevant as long as the applicant is 'in good faith' and as long as there is other material in the record which the Court interprets as affirmatively attesting to his good moral character. I cannot agree. It is not only that we, on the basis of a bare printed record and with no opportunity to hear and observe the applicant, are in no such position as the State Bar Committee was to determine whether in fact the applicant was sincere and has a good moral character. Even were we not so disadvantaged, to make such a determination is not our function in reviewing state judgments under the Constitution. Moreover, resolution of this factual question is wholly irrelevant to the case before us, since it seems to me altogether beyond question that a State may refuse admission to its Bar to an applicant, to matter how sincere, who refuses to answer questions which are reasonably relevant to his qualifications and which do not invade a constitutionally privileged area. The opinion of the Court does not really question this; it solves the problem by denying that it exists. But what the Court has really done, I think, is simply to impose on California its own notions of public policy and judgment. For me, today's decision represents an unacceptable intrusion into a matter of state concern.

For these reasons I dissent.