Law Students Civil Rights Research Council, Inc. v. Wadmond/Opinion of the Court

An applicant for admission to the Bar of New York must be a citizen of the United States, have lived in the State for at least six months, and pass a written examination conducted by the State Board of Law Examiners. In addition, New York requires that the Appellate Division of the State Supreme Court in the judicial department where an applicant resides must 'be satisfied that such person possesses the character and general fitness requisite for an attorney and counsellor-at-law.' New York Judiciary Law § 90, subd. 1, par. a (McKinney's Consol.Laws, c. 30, 1968). To carry out this provision, the New York Civil Practice Law and Rules require the appointment, in each of the four Judicial Departments into which the Supreme Court is divided, of a Committee or Committees on Character and Fitness. Section 528.1 of the Rules of the New York Court of Appeals for the Admission of Attorneys and Counsellors-at-Law requires that the character and general fitness specified in Judiciary Law § 90 'must be shown by the affidavits of two reputable persons residing in the city or county in which (the applicant) resides, one of whom must be a practicing attorney of the Supreme Court of this State.' The Committees also require the applicant himself to fill out a questionnaire. After receipt of the affidavits and questionnaire, the Committees conduct a personal interview with each applicant. As a final step before actual admission to the Bar, an applicant must take an oath that he will support the Constitutions of the United States and of the State of New York.

This case involves a broad attack, primarily on First Amendment vagueness and overbreadth grounds, upon this system for screening applicants for admission to the New York Bar. The appellants, plaintiffs in the trial court, are organizations and individuals claiming to represent a class of law students and law graduates similarly situated, seeking or planning to seek admission to practice law in New York. They commenced two separate actions for declaratory and injunctive relief in the United States District Court for the Southern District of New York, naming as defendants two Committees on Character and Fitness and their members and two Appellate Divisions and their judges. The complaints attacked the statutes, rules, and screening procedures as invalid on their face or as applied in the First and Second Departments. A three-judge court was convened and consolidated the two suits.

In a thorough opinion, the court considered the appellants' claims and found certain items on the questionnaires as they then stood to be so vague, overbroad, and intrusive upon applicants' private lives as to be of doubtful constitutional validity.' It granted the partial relief indicated by these findings, approving or further amending the revised questions submitted by the appellees to conform to its opinion. It upheld the statutes and rules as valid on their face and, with the exceptions noted, sustained the validity of New York's system. This appeal followed, and we noted probable jurisdiction. 396 U.S. 999, 90 S.Ct. 560, 24 L.Ed.2d 492.

We note at the outset that no person involved in this case has been refused admission to the New York Bar. Indeed, the appellants point to no case in which they claim any applicant has ever been unjustificably denied permission to practice law in New York State under these of earlier statutes, rules, or procedures. The basic thrust of the appellants' attack is, rather, that New York's system by its very existence works a 'chilling effect' upon the free exercise of the rights of speech and association of students who must anticipate having to meet its requirements.

* The three-judge District Court, although divided on other questions, was unanimous in finding no constitutional infirmity in New York's statory requirement that applicants for admission to its Bar must possess 'the character and general fitness requisite for an attorney and counsellor-at-law.' We have no difficulty in affirming this holding. See Konigsberg v. State Bar, 366 U.S. 36, 40-41, 81 S.Ct. 997, 1001-1002, 6 L.Ed.2d 105; Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 77 S.Ct. 752, 760, 1 L.Ed.2d 796 (Frankfurter, J., concurring). Long usage in New York and elsewhere has given well-defined contours to this requirement, which the appellees have construed narrowly as encompassing no more than 'dishonorable conduct relevant to the legal profession,' see 299 F.Supp., at 144 n. 20 (separate opinion of Motley, J.); see also Schware v. Board of Bar Examiners, supra, 353 U.S., at 247, 77 S.Ct., at 760 (Frankfurter, J., concurring). The few reported cases in which bar admission has been denied on character grounds in New York all appear to have involved instances of misconduct clearly inconsistent with the standards of a lawyer's calling.

This Court itself requires of applicants for admission to practice before it that 'their private and professional characters shall appear to be good.' Every State, plus the District of Columbia, Puerto Rico, and the Virgin Islands, requires some similar qualification.

But, the appellants contend, even though the statutory standard may be constitutionally valid, the methods used by the Committees to satisfy themselves that applicants meet that standard are not. Specifically, the appellants object to the terms of the third-party affidavits attesting to an applicant's good moral character. During this litigation, the appellees revised the affidavit forms in several respects. Whatever may have been said of the affidavits formerly used, we can find nothing in the present forms remotely vulnerable to constitutional attack. In the Second Department, for example, an affiant is asked to state whether he has visited the applicant's home and, if so, how often. We think it borders on the frivolous to say that such an inquiry offends the applicant's 'right to privacy protected by the First, Fourth, Ninth, and Fourteenth Amendments.' It is the applicant who selects the two people who will sign affidavits on his behalf, and the Committees may reasonably inquire as to the nature and extent of an affiant's actual acquaintance with the applicant.

As stated at the outset of this opinion, New York has further standards of eligibility for admission to its Bar. An applicant must be a United States citizen and a New York resident of six months' standing. And before he may be finally admitted to practice, an applicant must swear (or affirm) that he will support the Constitutions of the United States and of the State of New York. Reflecting these requirements, Rule 9406 of the New York Civil Practice Law and Rules directs the Committees on Character and Fitness not to certify an applicant for admission 'unless he shall furnish satisfactory proof to the effect' that he is a citizen of the United States, has resided in New York for at least six months, has complied with the applicable statutes and rules, and 'believes in the form of the government of the United States and is loyal to such government.'

The appellants do not take issue with the citizenship and minimum-residence requirements, nor with the items on the questionnaires for applicants dealing with these requirements. Their constitutional attack is mounted against the requirement of belief 'in the form of' and loyalty to the Government of the United States, and upon those parts of the questionnaires directed thereto.

We do not understand the appellants to question the constitutionality of the actual oath an applicant must take before admission to practice. In any event, there can be no doubt of its validity. It merely requires an applicant to swear or affirm that he will 'support the constitution of the United States' as well as that of the State of New York. See Knight v. Board of Regents, D.C., 269 F.Supp. 339, aff'd per curiam, 390 U.S. 36, 88 S.Ct. 816, 19 L.Ed.2d 812; Hosack v. Smiley, D.C., 276 F.Supp. 876, aff'd per curiam, 390 U.S. 744, 88 S.Ct. 1442, 20 L.Ed.2d 275; Ohlson v. Phillips, D.C., 304 F.Supp. 1152, aff'd per curiam, 397 U.S. 317, 90 S.Ct. 1124, 25 L.Ed.2d 337.

If all we had before us were the language of Rule 9406, which seems to require an applicant to furnish proof of his belief in the form of the Government of the United States and of his loyalty to the Government, this would be a different case. For the language of the Rule lends itself to a construction that could raise substantial constitutional questions, both as to the burden of proof permissible in such a context under the Due Process Clause of the Fourteenth Amendment, Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, and as to the permissible scope of inquiry into an applicant's political beliefs under the First and Fourteenth Amendments, e.g., Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Speiser v. Randall, supra, 357 U.S., at 527, 78 S.Ct., at 1342, Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311. But this case comes before us in a significant and unusual posture: the appellees are the every state authorities entrusted with the definitive interpretation of the language of the Rule. We therefore accept their interpretation, however we might construe that language were it left for us to do so. If the appellees be regarded as state courts, we are of course bound by their construction. See, e.g., Baggett v. Bullitt, supra, 377 U.S., at 375, 84 S.Ct., at 1324; Kingsley International Pictures Corp. v. Regents of University, 360 U.S. 684, 688, 79 S.Ct. 1362, 1365, 3 L.Ed.2d 1512; Speiser v. Randall, supra, 357 U.S., at 519, 78 S.Ct., at 1338; Terminiello v. Chicago, 337 U.S. 1, 5-6, 69 S.Ct. 894, 896-897, 93 L.Ed. 1131. If they are viewed as state administrative agencies charged with enforcement and construction of the Rule, their view is at least entitled to 'respectful consideration,' Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 337, 79 L.Ed. 780 (Cardozo, J.), and we see no reason not to accept their interpretation in this case.

The appellees have made it aboundantly clear that their construction of the Rule is both extremely narrow and fully cognizant of protected constitutional freedoms. There are three key elements to this construction. First, the Rule places upon applicants no burden of proof. Second, 'the form of the government of the United States' and the 'government' refer solely to the Constitution, which is all that the oath mentions. Third, 'belief' and 'loyalty' mean no more than willingness to take the constitutional oath and ability to do so in good faith.

Accepting this construction, we find no constitutional invalidity in Rule 9406. There is 'no showing of an intent to penalize political beliefs.' Konigsberg v. State Bar, 366 U.S., at 54, 81 S.Ct., at 1009. At the most, the Rule as authoritatively interpreted by the appellees performs only the function of ascertaining that an applicant is not one who 'swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath.' Bond v. Floyd, 385 U.S. 116, 132, 87 S.Ct. 339, 347, 17 L.Ed.2d 235.

As this case comes to us from the three-judge panel, the questionnaire applicants are asked to complete contains only two numbered questions relecting the disputed provision of Rule 9406. They are as follows:

'26. (a) Have you ever organized or helped to organize or     become a member of any organization or group of persons      which, during the period of your membership or association,      you knew was advocating or teaching that the government of      the United States or any state or any political subdivison      thereof should be overthrown or overturned by force,      violence, or any unlawful means? _ _ If your answer is in the     affirmative, state the facts below.

'(b) If your answer to (a) is in the affirmative, did you,     during the period of such membership or association, have the      specific intent to further the aims of such organization or      group of persons to overthrow or overturn the government of      the United States or any state or any political subdivision      thereof by force, violence or any unlawful means?

'27. (a) Is there any reason why you cannot take and     subscribe to an oath or affirmation that you will support the      constitutions of the United States and of the State of New      York? If there is, please explain.

'(b) Can you conscientiously, and do you, affirm that you     are, without any mental reservation, loyal to and ready to      support the Constitution of the United States?' _ _.

In dealing with these questions, we emphasize again that there has been no showing that any applicant for admission to the New York Bar has been denied admission either because of his answers to these or any similar questions, or because of his refusal to answer them. Necessarily, therefore, we must consider the validity of the questions only on their face, in light of Rule 9406 as construed by the agencies entrusted with its administration.

Question 26 is precisely tailored to conform to the relevant decisions of this Court. Our cases establish that inquiry into associations of the kind referred to is permissible under the limitations carefully observed here. We have held that knowing membership in an organization advocating the overthrow of the Government by force or violence, on the part of one sharing the specific intent to further the organization's illegal goals, may be made criminally punishable. Scales v. United States, 367 U.S., 203, 228-230, 81 S.Ct. 1469, 1485-1486, 6 L.Ed.2d 782. It is also well settled that Bar examiners may ask about Communist affiliations as a preliminary to further inquiry into the nature of the association and may exclude an applicant for refusal to answer. Konigsberg v. State Bar, 366 U.S., at 46-47, 81 S.Ct., at 1004-1005. See also, e.g., United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317. Surely a State is constitutionally entitled to make such an inquiry of an applicant for admission to a profession dedicated to the peaceful and reasoned settlement of disputes between men, and between a man and his government. The very Constitution that the appellants invoke stands as a living embodiment of that ideal.

As to Question 27, there can hardly be doubt of its constitutional validity in light of our earlier discussion of Rule 9406 and the appellees' construction of that Rule. The question is simply supportive of the appellees' task of ascertaining the good faith with which an applicant can take the constitutional oath. Indeed, the 'without any mental reservation' language of part (b) is the same phrase that appears in the oath required of all federal uniformed and civil service personnel. 5 U.S.C. § 3331 (1964 ed., Supp. V). New York's question however, is less demanding than the federal oath. Taking the oath is a requisite for federal employment, but there is no indication that a New York Bar applicant would not be given the opportunity to explain any 'mental reservation' and still gain admission to the Bar.

Finally, there emerges from the appellants' briefs and oral argument a more fundamental claim than any to which we have thus far adverted. They suggest that, whatever the facial validity of the various details of a screening system such as New York's, there inheres in such a system so constant a threat to applicants that constitutional deprivations will be inevitable. The implication of this argument is that no screening would be constitutionally permissible beyond academic examination and extremely minimal checking for serious, concrete character deficiencies. The principal means of policing the Bar would then be the deterrent and punitive effects of such post-admission sanctions as contempt, disbarment, malpractice suits, and criminal prosecutions.

Such an approach might be wise policy, but decisions based on policy alone are not for us to make. We have before us a State whose agents have evidently been scrupulous in the use of the powers that the appellants attack, and who have shown every willingness to keep their investigations within constitutionally permissible limits. We are not persuaded that careful administration of such a system as New York's need result in chilling effects upon the exercise of constitutional freedoms. Consequently, the choice between systems like New York's and approaches like that urged by the appellants rests with the legislatures and other policy-making bodies of the individual States. New York has made its choice. To disturb it would be beyond the power of this Court.

The judgment is affirmed.

Affirmed.

New York Judiciary Law (1968): Article 4-Appellate Division.

s 90. Admission to and removal from practice by appellate division; character committees

1. a. Upon the state board of law examiners certifying that a person has passed the required examination, or that the examination has been dispensed with, the appellate division of the supreme court in the department to which such person shall have been certified by the state board of law examiners, if it shall be satisfied that such person possesses the character and general fitness requisite for an attorney and counsellor-at-law, shall admit him to practice as such attorney and counsellor-at-law in all the courts of this state, provided that he has in all respects complied with the rules of the court of appeals and the rules of the appellate divisions relating to the admission of attorneys.

New York Civil Practice Law and Rules (1963): Article 94 Admission to Practice.

The appellate division in each judicial department shall appoint a committee of not less than three practicing lawyers for each judicial district within the department, for the purpose of investigating the character and fitness of every applicant for admission to practice as an attorney and counselor at law in the courts of this state. Each member of such committee shall serve until his death, resignation or the appointment of his successor. A lawyer who has been or who shall be appointed a member of the committee for one district may be appointed a member of the committee for another district within the same department.

Rule 9404. Certificate of character and fitness

Unless otherwise ordered by the appellate division, no person shall be admitted to practice without a certificate from the proper committee that it has carefully investigated the character and fitness of the applicant and that, in such respects, he is entitled to admission. To enable the committee to make such investigation the committee, subject to the approval of the justices of the appellate division, is authorized to prescribe and from time to time to amend a form of statement or questionnaire on which the applicant shall set forth in his usual handwriting all the information and data required by the Committee and the appellate division justices, including specifically his present and past places of actual residence, listing the street and number, if any, and the period of time he resided at each place.

No person shall receive said certificate from any committee and no person shall be admitted to practice as an attorney and counselor at law in the courts of this state, unless he shall furnish satisfactory proof to the effect:

1. That he believes in the form of the government of the United States and is loyal to such government;

2. that he is a citizen of the United States;

3. That he has been an actual resident of the state of New York for six months prior to the filing of his application for admission to practice; and

4. that he has complied with all the requirements of this rule and with all the requirements of the applicable statutes of this state, the applicable rules of the court of appeals and the applicable rules of the appellate division in which his application is pending, relating to the admission to practice as an attorney and counselor at law.

New York Judiciary Law Appendix (Supp. 1970): Rules of the Court of Appeals for the Admission of Attorneys and Counselors-at-Law.

s 528.1 General regulation.

Every applicant for admission to the bar must produce before a committee on character and fitness appointed by an Appellate Division of the Supreme Court and file with such committee evidence that he possesses the good moral character and general fitness requisite for an attorney and counselor at law as provided in section 90 of the Judiciary Law, which must be shown by the affidavits of two reputable persons residing in the city or county in which he resides, one of whom must be a practicing attorney of the Supreme Court of this State.

s 528.2 Supporting affidavits

Such affidavits much state that the applicant is, to the knowledge of the affiant, a person of good moral character and must set forth in detail the facts upon which such knowledge is based. Such affidavits shall not be conclusive, and the court may make further examination and inquiry through its committee on character and fitness or otherwise.

s 528.3 Certificate of Board of Law Examiners

Every applicant who pursued the study of law pursuant to these rules must file with such committee on character and fitness his certificate from the State Board of Law Examiners showing compliance with these rules.

s 528.4 Discretion of Appellate Division

The justices of the Appellate Division in each department shall adopt for their respective departments such additional rules for ascertaining the moral and general fitness of applicants as to such justices may seem proper.

APPIDAVIT WITH RESPECT TO CHARACTER OF APPLICANT

Supreme Court of the State of the State of New York

Appellate Division: First Judicial Department

of

_________________________

2. ____________________, being duly sworn, makes the following statement:

6. Length and nature of affiant's acquaintance with applicant:

a. Residence of applicant:

b. Persons with whom applicant lives (if known to affiant):

7. Affiant's conclusions as to applicant's moral character:

8. Facts upon which affiant's knowledge or opinion as to applicant's moral character is based:

9. IF THIS AFFIDAVIT IS MADE BY THE SPONSORING ATTORNEY, his sponsors' statement (see items 9 and 10 of instruction sheet) may be made here:

(Insert name of applicant)

for Admission to Practise as an Attorney and Counselor-at-law

_________________________, the affiant, being duly sworn,

(Name of Affiant)

deposes and says that the answers to the following questions have be en written by or under the direction of affiant, and that both questions and answers have been carefully read by affiant and that the several answers are true of affiant's own knowledge, except those stated to have been made on information and belief, and those stated to give the opinion or belief of affiant, and as to those answers, affiant believes them to be true.

1. (a) Home address of affiant (including County).

(b) Business address.

2. Nature of business? (If a lawyer, state whether or not you are a practicing attorney of the Supreme Court of the State of New York, and/or an attorney of any court or courts in any other state, country or jurisdiction, specifying each such state, country or jurisdiction, and give place of admission to the Bar, and approximate date of such admission.) 3. How long have you known the applicant personally?

4. State whether you are related to applicant by blood or marriage, or if there is any business, professional or similar relationship between you and the applicant or his family?

5. Describe briefly your associations with the applicant, setting forth how such associations began, and indicate in what activities (business, scholastic, cultural, recreational, athletic, social or otherwise) you have participated with applicant. It is not a sufficient answer merely to repeat the above words in parenthesis, but the particular activities should be specified.

6. How often have you come in contact with applicant during the entire period of acquaintance? ('Frequently' or 'often' or other indefinite statement is not a satisfactory answer.)

7. What is your conclusion as to applicant's moral character? (Reserve details for next question.)

8. State in detail the facts upon which your knowledge or opinion as to applicant's character is based.

(a) parental home:

(b) marital home, if any:

(c) any other home or place of abode applicant may have had?

10. (a) How often have you visited the parental, marital or other home or place of abode of applicant? ('Frequently' or 'often' or other indefinite statement is not a satisfactory answer. Note that in most cases visits will be less frequent than the contacts mentioned in Q. 6, above.)

(b) During what years (stating approximate dates)?

(c) At what addresses (listing them specifically)?

(Attesting officer to sign here)