Baird v. State Bar of Arizona
Argued December 9, 1969
Reargued October 14, 1970
Decided February 23, 1971
401 U.S. 1
Petitioner, who had handed the Arizona written bar exam, indexed all the companies to which she belonged given that age sixteen on the Bar Committee questionnaire, but refused to answer the question (No. 27) whether or not she had ever been a member of the Communist Party or any enterprise "that advocates overthrow of the USA Government through force or violence." The committee declined to technique her application in addition or recommend her admission to the bar. The Arizona Supreme Court denied her petition for an order to expose motive why she should no longer be admitted to exercise regulation.
Held: The judgment of the Arizona Supreme Court is reversed and the case is remanded. Pp. 401 U. S. 5-10.
Reversed and remanded.
MR. JUSTICE BLACK, joined by means of MR. JUSTICE DOUGLAS MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL concluded that perspectives and ideals are immune from bar committee inquisitions designed to put a basis for barring an applicant from the exercise of regulation, which is a matter of proper for one certified with the aid of learning and moral individual. Pp. 401 U. S. 5-8.
(a) A State s energy to inquire approximately someone s beliefs or institutions is restrained by way of the First Amendment, which prohibits a State from apart from someone from a career totally due to club in a political employer or because of his ideals. Pp 401 U. S. 5-6.
Page 401 U. S. 2
(b) While Arizona has a valid interest in determining whether or not petitioner s person and expert competence qualify her to practice law, petitioner has supplied the Bar Committee with great private and professional information to help its willpower. Pp. 401 U. S. 6-7.
MR. JUSTICE STEWART concluded that Question 27 is constitutionally infirm below the First and Fourteenth Amendments, as it isn't restrained to understanding club in any company that advocates violent overthrow of the Government, and it's far an inquiry into the proscribed region of affairs of state. Pp. 401 U. S. nine-10.
BLACK, J., announced the Court s judgment and brought an opinion, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined. STEWART, J., filed an opinion concurring within the judgment, put up, p. 401 U. S. nine. HARLAN, J., filed a dissenting opinion, publish, p. 401 U. S. 34. WHITE, J., filed a dissenting opinion, publish, p. 401 U. S. 10. BLACKMUN, J., filed a dissenting opinion, wherein BURGER, C.J., and HARLAN and WHITE, JJ., joined, put up, p. 401 U. S. eleven.
CERTIORARI TO THE SUPREME COURT OF ARIZONA
Petitioner, who had surpassed the Arizona written bar examination, listed all the businesses to which she belonged given that age 16 on the Bar Committee questionnaire, however refused to reply the question (No. 27) whether she had ever been a member of the Communist Party or any company "that advocates overthrow of the USA Government by means of force or violence." The committee declined to system her utility further or suggest her admission to the bar. The Arizona Supreme Court denied her petition for an order to show purpose why she ought to not be admitted to practice regulation.
MR. JUSTICE BLACK, joined by way of MR. JUSTICE DOUGLAS MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL concluded that perspectives and ideals are immune from bar committee inquisitions designed to put a foundation for barring an applicant from the practice of regulation, which is an issue of right for one qualified by means of getting to know and moral man or woman. Pp. 401 U. S. five-eight.
(a) A State s power to inquire approximately someone s ideals or institutions is limited by the First Amendment, which prohibits a State from except someone from a career totally due to membership in a political corporation or because of his ideals. Pp 401 U. S. 5-6.
(b) While Arizona has a legitimate hobby in figuring out whether or not petitioner s character and professional competence qualify her to exercise regulation, petitioner has provided the Bar Committee with big personal and expert statistics to assist its determination. Pp. 401 U. S. 6-7.
MR. JUSTICE STEWART concluded that Question 27 is constitutionally infirm underneath the First and Fourteenth Amendments, as it is not restricted to knowing membership in any employer that advocates violent overthrow of the Government, and it's miles an inquiry into the proscribed location of political opinions. Pp. 401 U. S. 9-10.
BLACK, J., introduced the Court s judgment and delivered an opinion, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined. STEWART, J., filed an opinion concurring inside the judgment, post, p. 401 U. S. nine. HARLAN, J., filed a dissenting opinion, post, p. 401 U. S. 34. WHITE, J., filed a dissenting opinion, submit, p. 401 U. S. 10. BLACKMUN, J., filed a dissenting opinion, wherein BURGER, C.J., and HARLAN and WHITE, JJ., joined, submit, p. 401 U. S. 11.
MR. JUSTICE BLACK announced the judgment of the Court and delivered an opinion in which MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL be part of.
This is one in all instances now before us from exclusive States in which candidates were denied admission to practice law solely due to the fact they refused to reply questions on their private beliefs or their affiliations with agencies that advise positive ideas about authorities. [Footnote 1] Sharp conflicts and near divisions have arisen on this Court regarding the power of
Page 401 U. S. three
States to refuse to allow applicants to practice regulation in cases where bar examiners have been suspicious about candidates loyalties and their views on Communism and revolution. This has been an increasingly more divisive and sour issue for some years, specially because Senator Joseph McCarthy from Wisconsin stirred up anti-Communist feelings and fears via his "investigations" within the early 1950 s. One applicant named Raphael Konigsberg was denied admission in California, and this Court reversed. Konigsberg v. State Bar, 353 U. S. 252 (1957). The State nonetheless denied him admission a 2nd time, and this Court then affirmed via a five-to-four selection. 366 U. S. 366 U.S. 36 (1961). An applicant named Rudolph Schware was denied admission in New Mexico, and this Court reversed, with 5 Justices agreeing on one opinion, 3 Justices on some other opinion, and one no longer participating. Schware v. Board of Bar Examiners, 353 U. S. 232 (1957). In another case, an applicant named George Anastaplo become denied admission in Illinois on grounds much like the ones involved in Konigsberg and Schware, and the denial changed into affirmed through a 5-to-four margin. In re Anastaplo, 366 U. S. 82 (1961). See additionally In re Summers, 325 U. S. 561 (1945). With sharp divisions in this Court, our docket and those of the Courts of Appeals were stuffed for years with litigation regarding inquisitions approximately beliefs and associations and refusals to let humans practice law and preserve public or even personal jobs solely because public government had been suspicious of their thoughts. [Footnote 2] Usually those denials of employment have not been based on any overt acts of misconduct or lawlessness, and the litigation has
Page 401 U. S. four
persisted to elevate critical questions of alleged violations of the First Amendment and other ensures of the Bill of Rights. [Footnote 3]
The foregoing cases and others contain lots of pages of perplexing formulation, delicate reasonings, and complicated holdings that contact on the identical suspicions and fears about citizenship and loyalty. However we've concluded the excellent manner to deal with this situation is to relate its easy information after which relate them to the forty five words that make up the First Amendment.
These are the data.
The petitioner, Sara Baird, graduated from law faculty at Stanford University in California in 1967. So a long way as the report suggests, there isn't now and never has been a unmarried mark in opposition to her ethical person. She has taken the exam prescribed via Arizona, and the solution of the State admits that she satisfactorily exceeded it. Among the questions she answered was No. 25, which called on her to reveal all businesses with which she have been associated considering that she reached 16 years of age. [Footnote 4] This question she responded to the satisfaction of the Arizona Bar Committee. Consequently, there's no fee or intimation that Mrs. Baird has no longer indexed the corporations to which she has belonged for the reason that becoming 16. In addition, but, she changed into requested to state whether she had ever been a member of the Communist Party or any company "that advocates overthrow of the US Government by means of force or
Page 401 U. S. 5
violence." [Footnote five] When she refused to reply this query, the Committee declined to system her application further or recommend her admission to the bar. [Footnote 6] The Arizona Supreme Court then denied her petition for an order to the Committee to show purpose why she have to not be admitted to practice law. We granted certiorari. 394 U.S. 957.
In Arizona, it is perjury to answer the bar committee s questions falsely, and perjury is punishable as a legal. Ariz.Rev.Stat.Ann. § thirteen-561 (1956). In effect, this younger woman became asked via the State to make a wager as to whether or not any corporation to which she ever belonged "advocates overthrow of america Government by way of pressure or violence." There could be provisions of the Federal Constitution aside from the First Amendment that would shield an applicant to a kingdom bar from being subjected to a query doubtlessly so hazardous to her liberty. But whether or not or now not there are different provisions that defend her, we assume the First Amendment does so right here. That Amendment, made relevant to the States by means of the Fourteenth, forbids any
"regulation respecting an status quo of religion, or prohibiting the loose exercising thereof; or abridging the liberty of speech, or of the press; or the right of the human beings peaceably to collect. . . ."
Mr. Justice Roberts, in referring to the First Amendment s guarantee of freedom of religion, stated:
"Thus, the Amendment embraces two principles, -- freedom to trust and freedom to act. The first is absolute however, in the nature of things, the second one cannot be. Conduct remains concern to law for the protection of society."
Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303-304 (1940).
Page 401 U. S. 6
See additionally Schneider v. State, 308 U. S. 147, 308 U. S. 160-161 (1939); West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 642 (1943). And we have made it clean that:
"This conjunction of liberties isn't strange to spiritual activity and institutions on my own. The First Amendment offers freedom of thoughts the equal safety as freedom of sense of right and wrong."
Thomas v. Collins, 323 U. S. 516, 323 U. S. 531 (1945). The safety of the First Amendment also extends to the right of affiliation. As we said in Schneider v. Smith, 390 U. S. 17, 390 U. S. 25 (1968):
"The First Amendment s ban against Congress abridging freedom of speech, the right peaceably to assemble and to petition, and the associational freedom . . . that is going with the ones rights create a keep wherein the views of the individual are made inviolate."
See additionally Shelton v. Tucker, 364 U. S. 479, 364 U. S. 485-487 (1960); Bates v. Little Rock, 361 U. S. 516 (1960); NAACP v. Alabama, 357 U. S. 449 (1958).
The First Amendment s protection of affiliation prohibits a State from except a person from a profession or punishing him entirely due to the fact he's a member of a specific political organisation or because he holds sure beliefs. United States v. Robel, 389 U. S. 258, 389 U. S. 266 (1967); Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 607 (1967). Similarly, while a State attempts to make inquiries about a person s beliefs or institutions, its strength is limited via the First Amendment. Broad and sweeping state inquiries into these blanketed areas, as Arizona has engaged in here, discourage citizens from workout rights protected by the Constitution. Shelton v. Tucker, supra; Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 (1963); Cf. Speiser v. Randall, 357 U. S. 513 (1958).
When a State seeks to inquire approximately an person s ideals and institutions, a heavy burden lies upon it
Page 401 U. S. 7
to reveal that the inquiry is vital to protect a valid kingdom hobby. Gibson v. Florida Legislative Investigation Committee, supra, at 372 U. S. 546. Of course, Arizona has a legitimate hobby in determining whether or not petitioner has the traits of person and the professional competence requisite to the exercise of law. But, right here, petitioner has already supplied the Committee with enormous private and expert facts to help its willpower. By her answers to questions aside from No. 25, and her listing of former employers, law college professors, and other references, she has made to be had to the Committee the information applicable to her fitness to exercise regulation. [Footnote 7] And something justification may be presented, a State may not inquire about a person s views or associations solely for the reason of withholding a proper or advantage because of what he believes.
Much has been written approximately the software of the First Amendment to instances where penalties were imposed on people due to their ideals. Some of what has been written is reconcilable with what we've got said right here, and some of it is not. Without
Page 401 U. S. eight
particular connection with all previous cases, it's far sufficient to mention we maintain that perspectives and ideals are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of regulation. Clearly Arizona has engaged in such questioning here. [Footnote eight]
The practice of law isn't always a remember of grace, but of right for one who's certified by means of his mastering and his ethical character. See Schware v. Board of Bar Examiners, supra, and Ex parte Garland, four Wall. 333 (1867). This record is entirely barren of 1 word, sentence, or paragraph that has a tendency to reveal this woman isn't always morally and professionally fit to serve honorably and nicely as a member of the legal career. It was blunders not to manner her application and now not to admit her to the Arizona Bar. The judgment of the Arizona Supreme Court is reversed, and the case remanded for further proceedings no longer inconsistent with this opinion.
It is so ordered.
[For dissenting opinion of MR. JUSTICE HARLAN, see submit, p. 401 U. S. 34.]
Page 401 U. S. 9
The different is No. 18, In re Stolar, submit, p. 401 U. S. 23. See additionally No. forty nine, Law Students Civil Rights Research Council v. Wadmond, publish, p. 401 U. S. 154.
See, e.g., Adler v. Board of Education, 342 U. S. 485 (1952); Beilan v. Board of Education, 357 U. S. 399 (1958); Elfbrandt v. Russell, 384 U. S. 11 (1966); Keyishian v. Board of Regents, 385 U. S. 589 (1967); United States v. Robel, 389 U. S. 258 (1967).
See the instances noted in n 2, supra. See additionally Shelton v. Tucker, 364 U. S. 479 (1960); American Communications Assn. v. Douds, 339 U. S. 382, 339 U. S. 445 (1950) (BLACK, J., dissenting); cf. Bates v. Little Rock, 361 U. S. 516 (1960); Speiser v. Randall, 357 U. S. 513 (1958); Wilkinson v. United States, 365 U. S. 399 (1961); NAACP v. Alabama, 357 U. S. 449 (1958); Brandenburg v. Ohio, 395 U. S. 444 (1969).
Question No. 27, App. 18.
Response of the Committee on Examinations and Admission to Order to Show Cause. App. four.
Respondent has argued that, even if an applicant has answered Question 25, list the groups to which she has belonged for the reason that age of sixteen, Question 27 nonetheless serves a beneficial and legitimate function. Respondent urges:
"Assume a solution which include an employer with the aid of call which include The Sons and Daughters of I Will Arise. This ought to surely be a Christian institution with spiritual targets. But additionally it could be an corporation dedicated to the objectives of Lenin, Stalin or another deceased man or woman whose teachings and objectives have been no longer conducive to the continued protection and welfare of our authorities and manner of existence."
Brief for Respondent eight.
The companies petitioner indexed in reaction to impeach 25 had been: Church Choir; Girl Scouts; Girls Athletic Association; Young Republicans; Young Democrats; Stanford Law Association; Law School Civil Rights Research Council. Respondent does not kingdom which of these corporations may also threaten the safety of the Republic.
The committee urges that it's far entitled to call for a solution to Question 27 due to the fact:
"Unless we are to conclude that person who clearly and actually believes within the overthrow of the United States Government by using pressure and violence is likewise certified to exercise law in our Arizona courts, then a solution to this question is certainly appropriate. The Committee once more emphasizes that an insignificant solution of sure might no longer cause an automatic rejection of the application. It could cause an investigation and interrogation as to whether or not or no longer the applicant currently entertains the view that a violent overthrow of the USA Government is some thing to be well-liked. If the solution to this inquiry became sure. then certainly we'd reject the software and endorse against admission."
(Emphasis added.) Memorandum in Support of Response to Petition for Order to Show Cause, App. 5.
MR. JUSTICE STEWART, concurring in judgment.
The Court has held that, below some circumstances, simple inquiry into present or past Communist Party club of an applicant for admission to the Bar isn't, as such, unconstitutional. Konigsberg v. State Bar, 366 U. S. 36; In re Anastaplo, 366 U. S. 82.
Question 27, however, goes further, and asks candidates whether they've ever belonged to any company "that advocates overthrow of the USA Government via force or violence." Our choices have made clear that such inquiry must be confined to knowing club to fulfill the First and Fourteenth Amendments. See, e.g., United States v. Robel, 389 U. S. 258, 389 U. S. 265-266; Law Students Civil Rights Research Council v. Wadmond, publish, p. 401 U. S. 154, at 401 U. S. 165. It follows from those choices that mere club in an employer can in no way, via itself, be sufficient floor for a State s imposition of civil disabilities or crook punishment. Such club can be quite exclusive from understanding club in an enterprise advocating the overthrow of the Government by means of pressure or violence, at the a part of one sharing the specific rationale to further the business enterprise s illegal dreams. See Scales v. United States, 367 U. S. 203, 367 U. S. 228-230; Law Students Civil Rights Research Council v. Wadmond, supra.
There is a further constitutional illness in Arizona s Question 27. The respondent State Bar is the business enterprise entrusted with the management of the requirements for admission to practice regulation in Arizona. And the respondent s explanation of its reason in asking the question makes clean that the query should be treated as an inquiry into political views. For the respondent explicitly states that it'd advise denial of admission solely due to an applicant s ideals that the respondent located objectionable. Cf. Wadmond, supra, at
Page 401 U. S. 10
401 U. S. 162-163. Yet the First and Fourteenth Amendments bar a State from performing in opposition to any character simply because of his beliefs. E.g., West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 642; Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303-304. Cf. Carrington v. Rash, 380 U. S. 89, 380 U. S. ninety four.
MR. JUSTICE WHITE, dissenting. *
I am quite unable to join the evaluations of MR. JUSTICE BLACK pronouncing the judgments of the Court in these instances. It is my view that the Constitution does now not require a State to admit to exercise a lawyer who believes in violence and intends to enforce that belief in his exercise of law and recommendation to customers. I also believe that the State may additionally ask an applicant initial questions so that it will allow further research and reasoned, articulated judgment as to whether or not the applicant will or will now not endorse lawless behavior as a practicing lawyer.
Arizona has no purpose of barring applicants primarily based on notion alone. This my Brother BLACKMUN makes pretty clear. Its inquiries have been designed to examine whether an applicant expects actively to help unlawful violence or espouses an activist position in enforcing that idea.
Ohio takes plenty the same approach, and, in my view, each States are proper. If, as a preface to similarly questions, New York may additionally ask whether or not an applicant is a understanding member of the Communist Party, although that truth on my own might not be floor for exclusion, see Law Students Civil Rights Research Council v. Wadmond, put up, p. 401 U. S. 154, Arizona and Ohio may additionally ask about easy membership for the identical justifiable reason. And if research exhibits the applicant to be actively furthering the unlawful
Page 401 U. S. eleven
activities of any group or to be with out comprehension that advising lawless behavior is incompatible with professional standards, the State need to be able to deny admission to the Bar.
As MR. JUSTICE BLACK s evaluations hasten to guarantee us, a State may assure itself of an applicant s "qualities of character" and educational qualifications. Accordingly, it might be entitled to make an evaluation of his "honesty," and refuse to license him if firmly satisfied through his responses or other report evidence that he could not agree to the requirements of integrity expected of the contributors of the Bar. Neither should it be required to admit to practice someone who believes in violent conduct to obtain social, political, or other ends, and who's presently and actively assisting such activities or who expects to accomplish that within the path of advising clients in his expert function. I for this reason see no constitutional foundation for forbidding the asking of perfectly relevant questions designed to examine whether an applicant considers it the proper position of the lawyer, as practitioner, to advocate and propose violence as a method for settling disputes or reaching social or political ends. I therefore dissent from the judgments in both of those instances.
* [This opinion applies additionally to No. 18, In re Stolar, submit, p. 401 U. S. 23.]
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE, MR. JUSTICE HARLAN, and MR. JUSTICE WHITE be part of, dissenting.
This, for me, isn't at all a case involving mere private beliefs at the a part of Sara Baird.
I even have always assumed, and I believe not erroneously, that Konigsberg v. State Bar, 366 U. S. 36, and In re Anastaplo, 366 U. S. 82, each decided on April 24, 1961, have remained precise law despite the Court s then close department (Justice HARLAN and Justices Frankfurter, Clark, Whittaker, and STEWART inside the majority; Justice BLACK and Chief Justice Warren, and Justices
Page 401 U. S. 12
DOUGLAS and BRENNAN, dissenting). Neither case has ever been expressly overruled. Neither is now expressly overruled. In each of the instances, the Court determined, at the least, as MR. JUSTICE STEWART places it in his separate concurrence here, that,
"beneath some circumstances, easy inquiry into gift or past Communist Party membership of an applicant for admission to the Bar isn't, as such, unconstitutional."
I assume the Court definitely decided more than that. I say this due to the fact (a) in Konigsberg, the applicant had
"reiterated unequivocally his disbelief in violent overthrow, and said that he had in no way knowingly been a member of any business enterprise which encouraged such motion,"
366 U.S. at 366 U. S. 39; (b) the Court said that it concept it
"clear that the Fourteenth Amendment s safety towards arbitrary state action does now not forbid a State from denying admission to a bar applicant as long as he refuses to provide unprivileged solutions to questions having a giant relevance to his qualifications,"
366 U.S. at 366 U. S. 44; that:
"We likewise regard as untenable petitioner s contentions that the questions as to Communist Party membership had been made irrelevant either by way of the truth that bare, harmless club is not a ground of disqualification or by way of petitioner s willingness to answer such final questions as whether or not he himself believed in violent overthrow or knowingly belonged to an company advocating violent overthrow,"
366 U.S. at 366 U. S. 46; and that:
"It could indeed be hard to argue that a notion, corporation enough to be carried over into advocacy, inside the use of illegal manner to alternate the shape of the State or Federal Government is an unimportant attention in determining the fitness of applicants
Page 401 U. S. 13
for club in a profession in whose hands so in large part lies the safekeeping of this united states of america s legal and political establishments. . . ."
"* * * *"
"[W]e regard the State s hobby in having attorneys who're committed to the law in its broadest feel, including not simplest its considerable provisions but additionally its strategies for orderly change, as certainly enough to outweigh the minimum impact upon loose affiliation occasioned by way of obligatory disclosure in the circumstances right here provided,"
366 U.S. at 366 U. S. 51-52; and (c) in Anastaplo, it become determined:
"We have additionally held in Konigsberg that the State s hobby in implementing any such rule as implemented to refusals to reply questions about membership inside the Communist Party outweighs any deterrent impact upon freedom of speech and affiliation, and therefore that such kingdom action does not offend the Fourteenth Amendment."
(Footnote not noted.) 366 U.S. at 366 U. S. 89.
Petitioner Baird, however, attacked the integrity of these instances earlier than the Arizona courtroom, and again attacks their integrity right here, and claims that, despite the fact that possibly distinguishable, the cases "warrant . . . delimiting, and possibly even overruling in mild of the trend on the grounds that 1961." In my view, Mrs. Baird has now had hanging success in her overruling endeavor, regardless of the seeming popularity of the two instances in the opinion of the plurality for reversal (hereafter plurality) and the separate concurrence s definite bow in their route.
The gift case comes here, after argument for the second one time, in a stark and clean posture. Mrs. Baird, applicant for admission to the Bar of the State of Arizona, possessor of an educational degree from Colorado College, and possessor of a diploma in law from Stanford
Page 401 U. S. 14
University, refuses to reply, other than to mention "Not Applicable," the twenty seventh inquiry of a questionnaire which the Arizona Supreme Court, through rule, has made part of the application for club inside the State Bar. [Footnote 2/1] That query reads:
"Are you presently or have you ever ever been a member of the Communist Party or any organisation that advocates overthrow of america Government by means of pressure or violence?"
The applicant bases this refusal (a) on the truth that, in her answer to a preceding inquiry, the twenty fifth, she indexed the agencies of which she had been a member because age 16, and (b) at the asserted prison propositions that to compel her to reply is to disclaim her First Amendment rights of freedom of perception and freedom of association, her Fifth Amendment right not to incriminate herself, and her Fourteenth Amendment proper to due procedure.
In my view, applicant Baird hugely overstates her case. On this document, I would verify the judgment of the Supreme Court of Arizona in denying Mrs. Baird s petition for admission to exercise law inside the State s courts.
There are several elements that spark off my conclusion:
1. Mrs. Baird is an wise and knowledgeable person. She holds a college degree and a graduate degree, and, as is assumed right here, she has demonstrated in the Bar exam an acceptable know-how and mastery of the regulation. There isn't any claim of vagueness or lack of knowledge on her a part of exactly what Question 27 intended or of what it become meant to probe. The applicant manifestly knew the scope of the question and its
Page 401 U. S. 15
problem with the Party and with forceful and violent overthrow of the Government.
2. Mrs. Baird s use of the "Not Applicable" response to Question 27 is not absolutely understandable. of direction, she can also have so phrased that answer hurriedly in the passing idea that, with her listing of agencies in response to Question 25, buttressed via the assertion, "This list consists of all corporations that I can do not forget at this time," and with those groups on the list manifestly now not inside the contemplation of Question 27, the latter question become, certainly, "not relevant." After all, she did employ the equal "not applicable" answer at the shape in no less than sixteen different locations; most of these, because of their conditional context, should nicely had been left blank and would were predicted to be left clean, no matter the overall guidance that all questions have been to be responded.
Nevertheless she did reply to the inquiry in that manner and, as her short states, she now has "declined to reply" the query. This, then, leaves this litigation in the posture in which the reaction to Question 27 become now not inadvertent, and became now not the product of any false impression or mistake, wherein a solution is now flatly refused, and in which the applicant, possibly rather defiantly, is content to have the file stay as it's miles and to have her case won or lost on that report
This is paying homage to the obstructionist approaches condemned in Konigsberg and Anastaplo.
three. For Mrs. Baird to mention that, due to the fact she had replied Question 25 and had indexed her agency memberships in view that age sixteen, she want no longer reply to Question 27 isn't any answer in any respect. [Footnote 2/2] To answer the only question absolutely and to refuse to reply to the opposite embraces an obvious
Page 401 U. S. 16
inconsistency of function, for the two questions are related. Furthermore, the questions are not duplicative. By her refusal to answer Question 27, she could vicinity on the Arizona Committee on Examinations and Admissions [Footnote 2/3] and at the Supreme Court of Arizona the weight of determining which of the companies she indexed, if any, turned into an arm of the Communist Party or recommended forceful or violent overthrow of the Government. That, however, is not the mission of the Committee or of the Arizona Supreme Court. It is Sara Baird s assignment. It is a truism, I think, that the Communist endeavor works under the floor, as well as within the open, and that high-sounding names had been the front and the verbal protect for something very distinct from what the name imports.
4. No one is in a higher position to realize the aim and motive and advocacy of an corporation than a member. Certainly the Committee and the Arizona Supreme Court, which produce other things to do, are not prepared for the undertaking of finding out the identification of every named corporation, mainly one that might follow the usual of the less stated and regarded, the better. And Mrs. Baird could place this burden on the Committee by way of submitting partial answers. She gives the advent of playing a sport. The importance of the subject merits higher than that.
five. It has been said that the load is at the applicant. Application of Courtney, 83 Ariz. 231, 233, 319 P.2nd 991, 993 (1957). But a most minimal burden it is. Had she answered "None" to Question 27, that could were the cease of the problem in the absence of apparent prevarication. If she have been unsure, the answer "None to my understanding" might have completed the same result. She chose neither answer. She selected, instead, to remain silent and less than candid.
Page 401 U. S. 17
6. The plurality opinion, I sense, fails to place the issue in specific cognizance. This isn't a state of affairs wherein, as that opinion states, and even would achieve this in a perjury context,
"In impact this young lady changed into requested by using the State to make a wager as to whether or not any company to which she ever belonged advocates overthrow of america Government via pressure or violence. "
It falls a ways short of guesswork. Mrs. Baird both knew the solution or she did now not realize it. If she knew, she coupled her know-how with an try and cover. If she did not know, she had best to state her lack of expertise. This became no "guess," and, absent the rationale to mislead, it surely changed into no bet fraught with the dangers of perjury.
7. Although Question 27 concededly could have been better phrased had it long gone on to inquire as to the applicant s own knowing participation in, and promoting of, illegal desires, a realistic reading of the query discloses that it's far directed now not at mere belief, but at advocacy and at the call to violent movement and pressure in pursuit of that advocacy. Contrary to the plurality opinion s conclusion and to that of the separate concurrence, I locate not anything in this report that indicates that Mrs. Baird routinely could were denied admission to the Bar had she spoke back Question 27 inside the affirmative. The file, and the Committee s short right here, [Footnote 2/four] divulge exactly the
Page 401 U. S. 18
opposite. In its Memorandum, filed with the Arizona court docket in guide of its reaction to the order to expose purpose, the Committee said that no judgment as to advice or nonrecommendation for admission had been made; that an affirmative solution to Question 27 would lead to further inquiry as to Mrs. Baird s expectation actively to support the goal of violent overthrow; and that, if her club is of a nominal character and she does not take part inside the advocacy views, there might be no legal foundation for refusing a advice for admission. [Footnote 2/5] The cloth quoted in the
Page 401 U. S. 19
plurality opinion s footnote eight is from the body of the Memorandum; my reading of that cloth, however, suggests handiest that in addition inquiry is then so as. I do no longer share the opinion s interpretation of that fabric as being directed to mere perception. The key words are whether "violent overthrow . . . is something to be sought after." That is an inquiry into willingness to take part in violence.
eight. There is talk, of direction, inside the briefs right here approximately whether admission to the Bar and receiving authority to exercise regulation is a "right" or a "privilege." I am vintage sufficient and old school enough continually to have appeared it extra as a privilege than as a proper. I at least notion that changed into the culture. A century in the past, Mr. Justice Field noted the practice of regulation by using a certified individual as a right, and not as a count number of the State s grace or want. Ex parte Garland, 4 Wall. 333, 71 U. S. 379 (1867). The Arizona courtroom has spoken in similar phrases. Application of Klahr, 102 Ariz. 529, 531, 433 P.second 977, 979 (1967). It ought to oppositely be said, with simply as a lot accuracy, as the Bar in its quick right here asserts, [Footnote 2/6] that "one certified via person, integrity and learning has the proper to practice law." Indeed, that is precisely the manner the Arizona court has phrased it:
"[T]he practice of regulation isn't always a privilege, however a right, conditioned totally at the requirement that a person have the essential intellectual,
Page 401 U. S. 20
bodily and ethical qualifications."
Application of Klahr, 102 Ariz. at 531, 433 P.2d at 979. See additionally Application of Levine, 97 Ariz. 88, 991, 397 P.2d 205, 206-207 (1964), and Application of Burke, 87 Ariz. 336, 339, 351 P.2nd 169, 172 (1960).
The characterization of Bar admission as a proper or as a privilege can be little extra than an exercise in semantics. It seems to me that, whichever it is able to be, the State, in granting the authority to practice regulation, with what surely is the genuine privilege, not the proper, to be entrusted with a client s confidences, aspirations, freedom, lifestyles itself, belongings, and the very manner of livelihood, demands some thing more of the applicant than a formal certificates finishing touch of a path of felony look at and the capacity acceptably to reply a series of questions on a Bar exam. It probably needs what essentially is person. And it's far man or woman that a State holds out to the public whilst it authorizes an applicant to practice regulation.
nine. Judges and Bar Examiners, of course, have to hesitate to choose too strictly those seeking entrance to the profession. Certainly the impatience and far-ranging attitudes of younger years aren't, in themselves, disqualifying. That is part of the maturing system, mainly for destiny attorneys, who have to look at, take a look at, choose, and broaden their philosophies of existence and in their career. Mr. Justice Frankfurter expressed it properly:
"The bar has not loved prerogatives; it has been entrusted with traumatic responsibilities. . . . From a career charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary obligation, which have, at some point of the centuries, been compendiously described as moral person. "
"* * * *
Page 401 U. S. 21
"History overwhelmingly establishes that many youths just like the petitioner were drawn by the mirage of communism in the course of the depression technology, best to have their eyes later opened to reality. Such reports no question can also disclose a woolly mind or naive notions regarding the troubles of society. But facts of history that we might be arbitrary in rejecting bar the presumption, not to mention an irrebuttable presumption, that response to foolish, baseless hopes concerning the betterment of society made individuals who had entertained them however who later certainly came to their senses and their sense of obligation questionable characters. "
Schware v. Board of Bar Examiners, 353 U. S. 232, 353 U. S. 247, 251 (1957) (concurring opinion).
10. An legal professional, we now and again have a tendency to forget about, is an officer of the courtroom. Ex parte Garland, four Wall. at seventy one U. S. 378. Perhaps we examine too much into that phrase. But there is a distinct element of fact and of history in it. We have seen, of overdue, an overabundance of courtroom spectacle added approximately through attorneys -- frequently folks who, being unlicensed in the specific State, are nonetheless authorized, via the court s indulgence, to appear for customers in a given case -- who provide indicators of ignoring their obligation to the courts and to the judicial manner. Question 27 bears upon this aspect of an applicant s man or woman.
11. The plurality opinion recognizes that Arizona has a legitimate interest in determining whether the applicant has the "traits of character" considered necessary for the exercise of regulation. But the opinion then is going directly to prescribe whilst, in its judgment, the applicant has given a sufficient amount of records to the committee. I doubt if this Court is the proper tribunal to choose the sufficiency of fabric supplied for prison exercise in Arizona. Of course, there may be a constitutional restrict, but that
Page 401 U. S. 22
restrict is marked by way of the applicable, via the excesses of unreasonableness and of harassment, and by way of the otherwise constitutionally forbidden. It need to not be marked at an arbitrary factor in which the applicant, for motives of convenience or assumed self-safety or contrariness, decides that sufficient is enough.
12. Finally, the State has a measure of a proper to guard itself. Its place of possible vulnerability is nowhere extra than in its courts and in its judicial technique. Courtroom activities disclosed in recent litigation vividly reveal this. See Illinois v. Allen, 397 U. S. 337 (1970); Mayberry v. Pennsylvania, 400 U. S. 455 (1971). Assurance that applicant Baird at the least professes to chorus from forceful and violent overthrow of the Government of which, upon admission, she turns into a real and running component, and under which, for higher or for worse, she has lived and, judging by her first rate schooling, has prospered and enjoyed a few benefits, is a subject of legitimate inquiry.
As stated above, on this document, I could affirm the judgment of the Supreme Court of Arizona.
See 102 Ariz. XXIV, XXIX, and XXXVII, for the pertinent provisions of Rule 28(c) in impact at the time Mrs. Baird submitted her utility. The rule was amended, powerful August 1, 1970, in approaches now not relevant here. See 106 Ariz. XXXI.
The majority, of route, manifestly could preserve that Question 25 also was impermissible. In re Stolar, put up, p. 401 U. S. 23. Mrs. Baird, but, seems to have had no hesitancy in answering that inquiry.
See Arizona Supreme Court Rule 28(c).
"The Committee would once more emphasize that it has fashioned no judgment as to whether or not Sara Baird have to or ought to not be recommended for admission to the Bar of this State to this Court."
"The Committee would again emphasize to this Court that, if the solution to question No. 27 is yes, the Committee will then enterprise to examine if Sara Baird does adhere to the view that the overthrow of the Government of this State and of the US via pressure and violence could be a suitable objective, and that she would count on to actively support such views. If this is the conclusion reached via the Committee, it's going to surely refuse to advise Sara Baird for admission to the Bar of the State of Arizona. Should the conclusion be that her club is of a nominal character and that she does no longer participate and adhere to the views that a violent overthrow of our authorities is ideal, then the Committee could haven't any prison foundation for refusing to advocate her for admission to practice law beneath the selections of the USA Supreme Court. . . ."
Respondent s Brief 2.
"The Committee, opposite to the repeated assertions and insinuations to the opposite in Petitioner s Brief, has also made it abundantly clean that, regardless of the affairs of state and perspectives of Sara Baird, it's far handiest if she is determined to actively trust inside the perception and espouses an activist role in imposing the perception that our government be destroyed through force and violence that a good advice might be refused her through the Committee. . . ."
Respondent s Brief 3.
"The Committee has no longer and can't in top moral sense certify to the Arizona Supreme Court that Sara Baird has the man or woman and ethical health to practice regulation if she does actively support and recommend the overthrow of the Government of the USA by force and violence."
Respondent s Brief 6.
"The trouble is straightforward. Is one who believes in and who's inclined to paintings to undermine and break the Government of the United States qualified to be admitted to the exercise of law? "
Respondent s Brief 13.
The Memorandum states as its end:
"The Committee might once more emphasize that it has shaped no judgment as to whether or no longer Sara Baird ought to or have to now not be recommended for admission to the Bar of this State to this Court."
"The Committee could once more emphasize to this Court that, if the answer to impeach No. 27 is sure, the Committee will then undertaking to check if Sara Baird does adhere to the view that the overthrow of the Government of this State and of the USA through pressure and violence could be a suitable goal, and that she might count on to actively aid such views. If this is the conclusion reached by the Committee, it will surely refuse to recommend Sara Baird for admission to the Bar of the State of Arizona. Should the belief be that her membership is of a nominal individual, and that she does not participate and adhere to the perspectives that a violent overthrow of our authorities is applicable, then the Committee would have no legal foundation for refusing to advise her for admission to practice law. . . ."
Respondent s Brief 15.
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