In 1953 the Board of Bar Examiners of New Mexico refused to
permit petitioner to take the bar examination, on the ground that
he had not shown "good moral character," and thereby precluded his
admission to the bar of that State. It was conceded that petitioner
was qualified in all other respects. Petitioner made a strong
showing of good moral character, except that it appeared that, from
1933 to 1937, he had used certain aliases, that he had been
arrested (but never tried or convicted) on several occasions prior
to 1940, and that, from 1932 to 1940, he was a member of the
Communist Party. The State Supreme Court sustained the Board.
Held: On the record in this case, the State of New
Mexico deprived petitioner of due process in denying him the
opportunity to qualify for the practice of law. Pp.
353 U. S.
233-247.
(a) A State cannot exclude a person from the practice of law or
from any other occupation in a manner or for reasons that
contravene the Due Process Clause of the Fourteenth Amendment. Pp.
353 U. S.
238-239.
(b) A State can require high standards of qualifications, such
as good moral character or proficiency in its law, before it admits
an applicant to the bar; but any qualification must have a rational
connection with the applicant's fitness or capacity to practice
law. P.
353 U. S.
239.
(c) Even in applying permissible standards, officers of the
State cannot exclude an applicant when there is no basis for their
finding that he fails to meet these standards, or when their action
is invidiously discriminatory. P.
353 U. S.
239.
(d) Whether the practice of law is a "right" or a "privilege"
need not here be determined; it is not a matter of the State's
grace, and a person cannot be barred except for valid reasons. P.
353 U. S. 239,
n 5.
(e) Petitioner's use from 1934 to 1937 of certain aliases, for
purposes which were not wrong and not to cheat or defraud, does
Page 353 U. S. 233
not support an inference of bad moral character more than 20
years later. Pp.
353 U. S.
240-241.
(f) The arrests of petitioner are insufficient to support a
finding that he had bad moral character at the time he applied to
take the bar examination. Pp.
353 U. S.
241-243.
(g) Petitioner's membership in the Communist Party from 1932 to
1940 does not justify an inference that he presently has bad moral
character. Pp.
353 U. S.
243-246.
(h) The use of aliases, the arrests, and former membership in
the Communist Party do not in combination warrant exclusion of
petitioner from the practice of law. P.
353 U. S.
246.
(i) In the light of petitioner's forceful showing of good moral
character, the evidence upon which the State relies cannot be said
to raise substantial doubts as to his present good moral character.
P.
353 U. S.
246.
60 N.M. 304,
291 P.2d 607,
reversed and remanded.
MR. JUSTICE BLACK delivered the opinion of the Court.
The question presented is whether petitioner, Rudolph Schware,
has been denied a license to practice law in New Mexico in
violation of the Due Process Clause of the Fourteenth Amendment to
the United States Constitution.
New Mexico has a system for the licensing of persons to practice
law similar to that in effect in most States. [
Footnote 1] A Board of Bar Examiners determines if
candidates for admission to the bar have the necessary
qualifications. When the Board concludes that an applicant
qualifies,
Page 353 U. S. 234
it recommends to the State Supreme Court that he be admitted. If
the court accepts the recommendation, the applicant is entitled to
practice law upon taking an oath to support the constitutions and
laws of the United States and New Mexico. An applicant must pass a
bar examination before the Board will give him its recommendation.
The Board can refuse to permit him to take this examination unless
he demonstrates that he has "good moral character."
In December, 1953, on the eve of his graduation from the
University of New Mexico School of Law, Schware filed an
application with the Board of Bar Examiners requesting that he be
permitted to take the bar examination scheduled for February, 1954.
His application was submitted on a form prescribed by the Board
that required answers to a large number of questions. From the
record, it appears that he answered these questions in detail.
Among other things, he disclosed that he had used certain aliases
between 1933 and 1937, and that he had been arrested on several
occasions prior to 1940. When he appeared to take the examination,
the Board informed him that he could not do so. He later requested
a formal hearing on the denial of his application. The Board
granted his request. At the hearing, the Board told him for the
first time why it had refused to permit him to take the bar
examination. It gave him a copy of the minutes of the meeting at
which it had voted to deny his application. These minutes read:
"No. 1309, Randolph Schware. It is moved by Board Member Frank
Andrews that the application of Rudolph Schware to take the bar
examination be denied for the reason that, taking into
consideration the use of aliases by the applicant, his former
connection with subversive organizations, and his record of
arrests, he has failed to satisfy the Board as to the
Page 353 U. S. 235
requisite moral character for admission to the Bar of New
Mexico. Whereupon, said motion is duly seconded by Board Member
Ross L. Malone, and unanimously passed. [
Footnote 2]"
At the hearing, petitioner called his wife, the rabbi of his
synagogue, a local attorney, and the secretary to the dean of the
law school to testify about his character. [
Footnote 3] He took the stand himself, and was
thoroughly examined under oath by the Board. His counsel introduced
a series of letters that petitioner had written his wife from 1944
through 1946 while he was on duty in the Army. Letters were also
introduced from every member of petitioner's law school graduating
class except one, who did not comment. And all of his law school
professors who were then available wrote in regard to his moral
Page 353 U. S. 236
character. The Board called no witnesses, and introduced no
evidence.
The record of the formal hearing shows the following facts
relevant to Schware's moral character. He was born in a poor
section of New York City in 1914, and grew up in a neighborhood
inhabited primarily by recent immigrants. His father was an
immigrant, and, like many of his neighbors, had a difficult time
providing for his family. Schware took a job when he was nine years
old, and, throughout the remainder of school, worked to help
provide necessary income for his family. After 1929, the economic
condition of the Schware family and their neighbors, as well as
millions of others, was greatly worsened. Schware was then at a
formative stage in high school. He was interested in and
enthusiastic for socialism and trade unionism, as was his father.
In 1932, despairing at what he considered lack of vigor in the
socialist movement at a time when the country was in the depths of
the great depression, he joined the Young Communist League.
[
Footnote 4] At this time, he
was 18 years old and in the final year of high school.
From the time he left school until 1940, Schware, like many
others, was periodically unemployed. He worked at a great variety
of temporary and ill-paying jobs. In 1933, he found work in a glove
factory, and there he participated in a successful effort to
unionize the employees. Since these workers were principally
Italian, Schware assumed the name Rudolph Di Caprio to forestall
the effects of anti-Jewish prejudice against him, not only in
securing and retaining a job, but in assisting in the organization
of his fellow employees. In 1934, he went to California, where he
secured work on the
Page 353 U. S. 237
docks. He testified that he continued to use the name Rudolph Di
Caprio because Jews were discriminated against in employment for
this work. Wherever Schware was employed, he was an active advocate
of labor organization. In 1934, he took part in the great maritime
strikes on the west coast, which were bitterly fought on both
sides. While on strike in San Pedro, California, he was arrested
twice on "suspicion of criminal syndicalism." He was never formally
charged nor tried, and was released in each instance after being
held for a brief period. He testified that the San Pedro police, in
a series of mass arrests, jailed large numbers of the strikers.
At the time of his father's death in 1937, Schware left the
Communist Party, but later he rejoined. In 1940, he was arrested
and indicted for violating the Neutrality Act of 1917. He was
charged with attempting to induce men to volunteer for duty on the
side of the Loyalist Government in the Spanish Civil War. Before
his case came to trial, the charges were dismissed and he was
released. Later in 1940, he quit the Communist Party. The
Nazi-Soviet Non-Aggression Pact of 1939 had greatly disillusioned
him, and this disillusionment was made complete as he came to
believe that certain leaders in the Party were acting to advance
their own selfish interests, rather than the interests of the
working class which they purported to represent.
In 1944, Schware entered the armed forces of the United States.
While in the service, he volunteered for duty as a paratrooper, and
was sent to New Guinea. While serving in the Army here and abroad,
he wrote a number of letters to his wife. These letters show a
desire to serve his country and demonstrate faith in a free
democratic society. They reveal serious thoughts about religion
which later led him and his wife to associate themselves with a
synagogue when he returned to civilian
Page 353 U. S. 238
life. He was honorably discharged from the Army in 1946.
After finishing college, he entered the University of New Mexico
law school in 1950. At the beginning, he went to the dean and told
him of his past activities and his association with the Communist
Party during the depression, and asked for advice. The dean told
him to remain in school and put behind him what had happened years
before. While studying law, Schware operated a business in order to
support his wife and two children and to pay the expenses of a
professional education. During his three years at the law school,
his conduct was exemplary.
At the conclusion of the hearing, the Board reaffirmed its
decision denying Schware the right to take the bar examination. He
appealed to the New Mexico Supreme Court. That court upheld the
denial with one justice dissenting. 60 N.M. 304,
291 P.2d 607,
630. In denying a motion for rehearing, the court stated that:
"[Schware's membership in the Communist Party], together with
his other former actions in the use of aliases and record of
arrests, and his present attitude toward those matters, were the
considerations upon which [we approved the denial of his
application]."
Schware then petitioned this Court to review his case, alleging
that he had been denied an opportunity to qualify for the practice
of law contrary to the Due Process Clause of the Fourteenth
Amendment. We granted certiorari. 352 U.S. 821.
Cf. In re
Summers, 325 U. S. 561,
325 U. S. 562,
325 U. S.
564-569.
And see Konigsberg v. State Bar of
California, post, p.
353 U. S. 252,
decided today.
A State cannot exclude a person from the practice of law or from
any other occupation in a manner or for reasons that contravene the
Due Process or Equal Protection
Page 353 U. S. 239
Clause of the Fourteenth Amendment. [
Footnote 5]
Dent v. West Virginia, 129 U.
S. 114.
Cf. Slochower v. Board of Higher
Education, 350 U. S. 551;
Wieman v. Updegraff, 344 U. S. 183.
And see 60 U. S. 19 How.
9,
60 U. S. 13. A
State can require high standards of qualification, such as good
moral character or proficiency in its law, before it admits an
applicant to the bar, but any qualification must have a rational
connection with the applicant's fitness or capacity to practice
law.
Douglas v. Noble, 261 U. S. 165;
Cummings v.
Missouri, 4 Wall. 277,
71 U. S.
319-320.
Cf. Nebbia v. New York, 291 U.
S. 502. Obviously an applicant could not be excluded
merely because he was a Republican or a Negro or a member of a
particular church. Even in applying permissible standards, officers
of a State cannot exclude an applicant when there is no basis for
their finding that he fails to meet these standards, or when their
action is invidiously discriminatory.
Cf. Yick Wo v.
Hopkins, 118 U. S. 356.
Here, the State concedes that Schware is fully qualified to take
the examination in all respects other than good moral character.
Therefore, the question is whether the Supreme Court of New Mexico,
on the record before us, could reasonably find that he had not
shown good moral character.
There is nothing in the record which suggests that Schware has
engaged in any conduct during the past 15 years which reflects
adversely on his character. The New Mexico Supreme Court recognized
that he "presently
Page 353 U. S. 240
enjoys good repute among his teachers, his fellow students and
associates and in his synagogue." Schware's professors, his fellow
students, his business associates, and the rabbi of the synagogue
of which he and his family are members all gave testimony that he
is a good man, a man who is imbued with a sense of deep
responsibility for his family, who is trustworthy, who respects the
rights and beliefs of others. From the record, it appears he is a
man of religious conviction, and is training his children in the
beliefs and practices of his faith. A solicitude for others is
demonstrated by the fact that he regularly read the Bible to an
illiterate soldier while in the Army and law to a blind student
while at the University of New Mexico law school. His industry is
depicted by the fact that he supported his wife and two children
and paid for a costly professional education by operating a
business separately while studying law. He demonstrated candor by
informing the Board of his personal history and by going to the
dean of the law school and disclosing his past. The undisputed
evidence in the record shows Schware to be a man of high ideals
with a deep sense of social justice. Not a single witness testified
that he was not a man of good character.
Despite Schware's showing of good character, the Board and court
below thought there were certain facts in the record which raised
substantial doubts about his moral fitness to practice law.
(1)
Aliases. -- From 1934 to 1937, Schware used certain
aliases. He testified that these aliases were adopted so he could
secure a job in businesses which discriminated against Jews in
their employment practices and so that he could more effectively
organize non-Jewish employees at plants where he worked. Of course
it is wrong to use an alias when it is done to cheat or defraud
another, but it can hardly be said that Schware's attempt to
forestall anti-semitism in securing employment or organizing
Page 353 U. S. 241
his fellow workers was wrong. He did give an assumed name to
police in 1934 when he was picked up in a mass arrest during a
labor dispute. He said he did this so he would not be fired as a
striker. This is certainly not enough evidence to support an
inference that petitioner has bad moral character more than 20
years later.
(2)
Arrests. -- In response to the questions on the
Board's application form, Schware stated that he had been arrested
on several occasions:
1. In 1934, while he was participating in a bitter labor dispute
in the California shipyards, petitioner was arrested at least two
times on "suspicion of criminal syndicalism." After being held for
a brief period, he was released without formal charges being filed
against him. He was never indicted nor convicted for any offense in
connection with these arrests.
The mere fact that a man has been arrested has very little, if
any, probative value in showing that he has engaged in any
misconduct. [
Footnote 6] An
arrest shows nothing more than that someone probably suspected the
person apprehended of an offense. When formal charges are not filed
against the arrested person and he is released without trial,
whatever probative force the arrest may have had is normally
dissipated. Moreover here, the special facts surrounding the 1934
arrests are relevant in shedding light on their present
significance. Apparently great numbers of strikers were picked up
by police in a series of arrests during the strike at San Pedro,
and many of these were charged with "criminal syndicalism."
[
Footnote 7] The California
syndicalism
Page 353 U. S. 242
statutes in effect in 1934 were very broad and vague. [
Footnote 8] There is nothing in the
record which indicates why Schware was arrested on "suspicion" that
he had violated this statute. There is no suggestion that he was
using force or violence in an attempt to overthrow the state or
national government. Again, it should be emphasized that these
arrests were made more than 20 years ago, and petitioner was never
formally charged nor tried for any offense related to them.
2. In 1940, Schware was arrested for violating the Neutrality
Act of 1917, which makes it unlawful for a person within the United
States to join or to hire or retain another to join the army of any
foreign state. [
Footnote 9] He
was indicted, but, before the case came to trial, the prosecution
dropped the charges. He had been charged with recruiting persons to
go overseas to aid the Loyalists in the Spanish Civil War. Schware
testified that he was unaware of this old law at the time. From the
facts in the record, it is not clear that he was guilty of its
violation. [
Footnote 10] But
even if it be assumed that the law was violated, it does not seem
that such an offense indicated moral turpitude -- even in 1940.
Many persons in this country actively supported the Spanish
Loyalist Government. During the prelude to World War II, many
idealistic young men volunteered to help causes they believed
right. It is commonly known that a number of Americans
Page 353 U. S. 243
joined air squadrons and helped defend China and Great Britain
prior to this country's entry into the war. There is no record that
any of these volunteers were prosecuted under the Neutrality Act.
Few Americans would have regarded their conduct as evidence of
moral turpitude. In determining whether a person's character is
good, the nature of the offense which he has committed must be
taken into account. [
Footnote
11]
In summary, these arrests are wholly insufficient to support a
finding that Schware had bad moral character at the time he applied
to take the bar examination. [
Footnote 12] They all occurred many years ago, and in no
case was he ever tried or convicted for the offense for which he
was arrested.
(3)
Membership in the Communist Party. -- Schware
admitted that he was a member of the Communist Party from 1932 to
1940. Apparently the Supreme Court of New Mexico placed heavy
emphasis on this part membership in denying his application.
[
Footnote 13] It stated:
"We believe one who has knowingly given his loyalties to [the
Communist Party] for six to seven
Page 353 U. S. 244
years during a period of responsible adulthood is a person of
questionable character."
60 N.M. 319, 291 P.2d 617. The court assumed that, in the
1930's, when petitioner was a member of the Communist Party, it was
dominated by a foreign power and was dedicated to the violent
overthrow of the Government, and that every member was aware of
this. It based this assumption primarily on a view of the nature
and purposes of the Communist Party as of 1950 expressed in a
concurring opinion in
American Communications Ass'n v.
Douds, 339 U. S. 382,
339 U. S. 422.
However, that view did not purport to be a factual finding in that
case, and obviously it cannot be used as a substitute for evidence
in this case to show that petitioner participated in any illegal
activity or did anything morally reprehensible as a member of that
Party. During the period when Schware was a member, the Communist
Party was a lawful political party with candidates on the ballot in
most States. [
Footnote 14]
There is nothing in the record that gives any indication that his
association with that Party was anything more than a political
faith in a political party. That faith may have been unorthodox.
But, as counsel for New Mexico said in his brief,
"Mere unorthodoxy [in the field of political and social ideas]
does not, as a matter of fair and logical inference, negative 'good
moral character.' [
Footnote
15] "
Page 353 U. S. 245
Schware joined the Communist Party when he was a young man
during the midst of this country's greatest depression. Apparently,
many thousands of other Americans joined him in this step.
[
Footnote 16] During the
depression, when millions were unemployed and our economic system
was paralyzed, many turned to the Communist Party out of
desperation or hope. It proposed a radical solution to the grave
economic crisis. Later, the rise of fascism as a menace to
democracy spurred others who feared this form of tyranny to align
with the Communist Party. [
Footnote 17] After 1935, that Party advocated a "Popular
Front" of "all democratic parties against fascism." Its platform
and slogans stressed full employment, racial equality and various
other political and economic changes. [
Footnote 18]
During the depression, Schware was led to believe that drastic
changes needed to be made in the existing economic system. There is
nothing in the record, however, which indicates that he ever
engaged in any actions to
Page 353 U. S. 246
overthrow the Government of the United States or of any State by
force or violence, or that he even advocated such actions. Assuming
that some members of the Communist Party during the period from
1932 to 1940 had illegal aims and engaged in illegal activities, it
cannot automatically be inferred that all members shared their evil
purposes or participated in their illegal conduct. As this Court
declared in
Wieman v. Updegraff, 344 U.
S. 183,
344 U. S. 191:
"Indiscriminate classification of innocent with knowing activity
must fall as an assertion of arbitrary power."
Cf. Joint
Anti-Fascist Refugee Committee v. McGrath, 341 U.
S. 123,
341 U. S. 136.
[
Footnote 19] And finally,
there is no suggestion that Schware was affiliated with the
Communist Party after 1940 -- more than 15 years ago. We conclude
that his past membership in the Communist Party does not justify an
inference that he presently has bad moral character.
The State contends that, even though the use of aliases, the
arrests, and the membership in the Communist Party would not
justify exclusion of petitioner from the New Mexico bar if each
stood alone, when all three are combined, his exclusion was not
unwarranted. We cannot accept this contention. In the light of
petitioner's forceful showing of good moral character, the evidence
upon which the State relies -- the arrests for offenses for which
petitioner was neither tried nor convicted, the use of an assumed
name many years ago, and membership in the Communist Party during
the 1930's -- cannot be said to raise substantial doubts about his
present good moral character. There is no evidence in the record
which
Page 353 U. S. 247
rationally justifies a finding that Schware was morally unfit to
practice law. [
Footnote
20]
On the record before us, we hold that the State of New Mexico
deprived petitioner of due process in denying him the opportunity
to qualify for the practice of law. The judgment below is reversed,
and the case remanded for proceedings not inconsistent with this
opinion.
It is so ordered.
MR. JUSTICE WHITTAKER took no part in the consideration or
decision of this case.
[
Footnote 1]
Generally, see N.M.Stat.Ann., 1953, § 18-1-8 and the
Rules Governing Admission to the Bar appended thereto.
[
Footnote 2]
Apparently the Board had received confidential information that
Schware had once been a member of the Communist Party. The Board's
application form did not request disclosure of such information,
and so Schware did not mention it in his application. At the
hearing, he testified at length about his membership. The Board
refused to let petitioner see the confidential information against
him, although it appears that its initial denial of his application
was partially based on this information. While this secret evidence
was not made a part of the record of the hearing, counsel for
petitioner contends that the Board was influenced by it in adhering
to its view that petitioner was not qualified. In the New Mexico
Supreme Court, the members of the majority did not look at the
confidential information. And while that court passed on
petitioner's qualifications in the exercise of its original
jurisdiction, the majority placed considerable reliance on the
Board's recommendations. Therefore, petitioner contends, the
Board's use of confidential information deprived him of procedural
due process.
Cf. Goldsmith v. United States Bd. of Tax
Appeals, 270 U. S. 117;
Bratton v. Chandler, 260 U. S. 110;
Minkoff v. Payne, 93 U.S.App.D.C. 123, 210 F.2d 689, 691;
In re Carter, 89 U.S.App.D.C. 310, 192 F.2d 15,
certiorari denied, 342 U.S. 862. We find it unnecessary to
consider this contention.
[
Footnote 3]
The dean was on sabbatical leave, and not available.
[
Footnote 4]
At times during 1932, more than 12,060,000 of the nation's
51,000,000 working persons were unemployed. Statistical Abstract of
the United States (1956) 197.
[
Footnote 5]
We need not enter into a discussion whether the practice of law
is a "right" or "privilege." Regardless of how the State's grant of
permission to engage in this occupation is characterized, it is
sufficient to say that a person cannot be prevented from practicing
except for valid reasons. Certainly the practice of law is not a
matter of the State's grace.
Ex parte
Garland, 4 Wall. 333,
71 U. S.
379.
[
Footnote 6]
Arrest, by itself, is not considered competent evidence at
either a criminal or civil trial to prove that a person did certain
prohibited acts.
Cf. Wigmore, Evidence, § 980a.
[
Footnote 7]
Petitioner testified that, during a two-month period, about
2,000 persons were arrested in connection with the strike.
Generally, for criticism of these arrests and the conduct of the
police during these and related strikes,
see S.Rep. No.
1150, 77th Cong., 2d Sess. 35, 131, 133-141.
[
Footnote 8]
"The term 'criminal syndicalism' as used in this act is hereby
defined as any doctrine or precept advocating, teaching or aiding
and abetting the commission of crime, sabotage (which word is
hereby defined as meaning wilful and malicious physical damage or
injury to physical property), or unlawful acts of force and
violence or unlawful methods of terrorism as a means of
accomplishing a change in industrial ownership or control, or
effecting any political change."
Cal.Stat.1919, c. 188, § 1.
See also De Jonge v.
Oregon, 299 U. S. 353,
where application of a similar statute was held
unconstitutional.
[
Footnote 9]
40 Stat. 39, now 18 U.S.C. § 959(a).
[
Footnote 10]
See Kiker, J. (dissenting), 60 N.M. 304, 321,
291 P.2d 607,
618.
[
Footnote 11]
For example, New Mexico makes conviction of a felony or a
misdemeanor grounds for disbarment only if it involves moral
turpitude. N.M.Stat.Ann., 1953, § 18-1-17(1).
Compare In re
Burch, 73 Ohio App. 97, 54 N.E.2d 803, where, in a disbarment
proceeding, conviction for violation of a federal statute for
failing to register as an agent of the German Government in 1941
was held not to evidence moral turpitude.
[
Footnote 12]
In 1941, Schware was arrested by police in Texas while driving a
friend's car to the west coast. Apparently the police suspected the
car was stolen. After a brief delay, they became convinced that the
car was rightfully in petitioner's possession, and he was allowed
to go on his way. This detention offers no proof of bad moral
character, and the State does not rely on it here.
[
Footnote 13]
Petitioner argues that a State constitutionally cannot consider
his membership in a lawful political party in determining whether
he is qualified for admission to the bar. He contends that a denial
based on such membership abridges the right of free political
association guaranteed by the Fourteenth Amendment. Because of our
disposition of this case, we find it unnecessary to pass on this
contention.
[
Footnote 14]
For example, in 1936, its presidential nominee was on the ballot
in 35 States, including New Mexico. Statistical Abstract of the
United States (1937) 159.
[
Footnote 15]
In
West Virginia State Board of Education v. Barnette,
319 U. S. 624,
319 U. S. 642,
this Court declared:
"If there is any fixed star in our constitutional constellation,
it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
therein."
[
Footnote 16]
According to figures of the Communist Party, it had 14,000
members in 1932, 26,000 in 1934, 41,000 in 1936. W. Z. Foster, From
Bryan to Stalin (1937) 303. It has been estimated that more than
700,000 persons in this country have been members of the Communist
Party at one time or another between 1919 and 1951. Ernst and Loth,
Report on The American Communist (1952) 14.
[
Footnote 17]
For the numerous and varied reasons why individuals have joined
the Communist Party,
see Taylor, Grand Inquest (1955)
155-159; Ernst and Loth, Report on The American Communist (1954);
Almond, The Appeals of Communism (1952); Crossman, The God That
Failed (1949); Department of Defense, Know Your Communist Enemy:
Who Are Communists and Why?, DOD PAM 4-6, Dec. 8, 1955. Many of
these reasons are not indicative of bad moral character.
[
Footnote 18]
See Moore, The Communist Party of the U.S.A.; An
Analysis of a Social Movement, 39 Am.Pol.Sci.Rev. 31, 32-33.
[
Footnote 19]
And see Schneiderman v. United States, 320 U.
S. 118,
320 U. S. 136,
where this Court stated:
". . . under our traditions, beliefs are personal, and not a
matter of mere association, and that men in adhering to a political
party or other organization notoriously do not subscribe
unqualifiedly to all of its platforms or asserted principles."
[
Footnote 20]
It must be borne in mind that, if petitioner otherwise qualifies
for the practice of law and is admitted to the bar, the State has
ample means to discipline him for any future misconduct.
N.M.Stat.Ann.1953, §§ 18-1-15 to 18-1-18.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE CLARK and MR. JUSTICE
HARLAN join, concurring.
Certainly since the time of Edward I, through all the
vicissitudes of seven centuries of Anglo-American history, the
legal profession has played a role all its own. The bar has not
enjoyed prerogatives; it has been entrusted with anxious
responsibilities. One does not have to inhale the self-adulatory
bombast of after-dinner speeches to affirm that all the interests
of man that are comprised under the constitutional guarantees given
to "life, liberty and property" are in the professional keeping of
lawyers. It is a fair characterization of the lawyer's
responsibility in our society that he stands "as a shield," to
quote Devlin, J., in defense of right and to ward off wrong. From a
profession 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
responsibility, that have, throughout the centuries, been
compendiously described as "moral character."
Page 353 U. S. 248
From the thirteenth century to this day, in England, the
profession itself has determined who should enter it. In the United
States, the courts exercise ultimate control. But while we have
nothing comparable to the Inns of Court, with us, too, the
profession itself, through appropriate committees, has long had a
vital interest, as a sifting agency, in determining the fitness,
and above all the moral fitness, of those who are certified to be
entrusted with the fate of clients. With us, too, the requisite
"moral character" has been the historic unquestioned prerequisite
of fitness. Admission to practice in a State and before its courts
necessarily belongs to that State. Of course, legislation laying
down general conditions of an arbitrary or discriminatory character
may, like other legislation, fall afoul of the Fourteenth
Amendment.
See Cummings v.
Missouri, 4 Wall. 277. A very different question is
presented when this Court is asked to review the exercise of
judgment in refusing admission to the bar in an individual case,
such as we have here.
It is beyond this Court's function to act as overseer of a
particular result of the procedure established by a particular
State for admission to its bar. No doubt satisfaction of the
requirement of moral character involves an exercise of delicate
judgment on the part of those who reach a conclusion, having heard
and seen the applicant for admission, a judgment of which it may be
said as it was of "many honest and sensible judgments" in a
different context that it expresses
"an intuition of experience which outruns analysis and sums up
many unnamed and tangled impressions -- impressions which may lie
beneath consciousness without losing their worth."
Chicago, B. & Q. R. Co. v. Babcock, 204 U.
S. 585,
204 U. S. 598.
Especially in this realm, it is not our business to substitute our
judgment for the State's judgment -- for it is the State, in all
the panoply of its powers, that is under review when the action of
its Supreme Court is under review.
Page 353 U. S. 249
Nor is the division of power between this Court and that of the
States in such matters altered by the fact that the judgment here
challenged involves the application of a conception like that of
"moral character," which has shadowy, rather than precise, bounds.
It cannot be that that conception -- moral character -- has now
been found to be so indefinite, because necessarily implicating
what are called subjective factors, that the States may no longer
exact it from those who are to carry on "the public profession of
the law." (
See Elihu Root, in 2 A.B.A.J. 736.) To a wide
and deep extent, the law depends upon the disciplined standards of
the profession and belief in the integrity of the courts. We cannot
fail to accord such confidence to the state process, and we must
attribute to its courts the exercise of a fair, and not a biased,
judgment in passing upon the applications of those seeking entry
into the profession.
But judicial action, even in an individual case, may have been
based on avowed considerations that are inadmissible in that they
violate the requirements of due process. Refusal to allow a man to
qualify himself for the profession on a wholly arbitrary standard
or on a consideration that offends the dictates of reason offends
the Due Process Clause. Such is the case here.
Living under hard circumstances, the Petitioner, while still in
his teens, encountered the confusions and dislocations of the great
depression. By one of those chance occurrences that not
infrequently determine the action of youth, petitioner joined the
Young Communist League toward the end of his highschool days. That
association led to membership in the Communist Party, which he
retained until the Hitler-Stalin Pact began a disaffection that was
completed by his break with the Party in 1940. After 1940, the
record of his life, including three years of honorable service in
the army, establishes that these early associations, and the
outlook they reflected, had
Page 353 U. S. 250
been entirely left behind.
* After his war
service, three years as a small businessman, and one year at
Western Michigan College, petitioner resolved on becoming a lawyer.
And so, in 1950, at the age of 36, he enrolled in the University of
New Mexico Law School and made full disclosure of his early
Communist career to its Dean. These are the facts that, taken
together with the use of aliases and arrests without conviction or
even prosecution, both in his early years, led the Supreme Court of
New Mexico, in an original proceeding before it after adverse
action by the Board of Bar Examiners, to deny petitioner's
application to take the bar examination.
For me, the controlling element in determining whether such
denial offended the Due Process Clause is the significance that the
New Mexico Supreme Court accorded the early Communist affiliations.
In its original opinion and in its opinion on rehearing, the court
thus reiterated its legal position:
"We believe one who has knowingly given his loyalties to such a
program and belief for six to seven years during a period of
responsible adulthood is a person of questionable character."
60 N.M. 304, 319, 339,
291 P.2d 607,
617, 630.
Since the New Mexico Supreme Court unequivocally held this to be
a factor without which, on a fair reading of its opinion, it would
not have denied the application, the conclusion that it drew from
all the factors in necessary combination must fall if it drew an
unwarranted legal conclusion from petitioner's early Communist
affiliation. Not unnaturally, the New Mexico Supreme Court
evidently
Page 353 U. S. 251
assumed that use of aliases in the pre-1940 period, several
unprosecuted arrests, and what it deemed "his present attitude
toward those matters," 60 N.M. at 339, 291 P.2d at 630 (as drawn
from the printed record, and not on the basis of having given the
petitioner a hearing before the court) precluded denial of his
application on these factors alone.
This brings me to the inference that the court drew from
petitioner's early, pre-1940 affiliations. To hold, as the court
did, that Communist affiliation for six to seven years up to 1940,
fifteen years prior to the court's assessment of it, in and of
itself made the petitioner "a person of questionable character" is
so dogmatic an inference as to be wholly unwarranted. History
overwhelmingly establishes that many youths like the petitioner
were drawn by the mirage of communism during the depression era,
only to have their eyes later opened to reality. Such experiences
no doubt may disclose a woolly mind or naive notions regarding the
problems of society. But facts of history that we would be
arbitrary in rejecting bar the presumption, let alone an
irrebuttable presumption, that response to foolish, baseless hopes
regarding the betterment of society made those who had entertained
them but who later undoubtedly came to their senses and their sense
of responsibility "questionable characters." Since the Supreme
Court of New Mexico, as a matter of law, took a contrary view of
such a situation in denying petitioner's application, it denied him
due process of law.
I therefore concur in the judgment.
* The only bit of evidence that may be adduced to the contrary
is a single phrase in a letter to his wife in 1944. To give it an
unfavorable and disqualifying significance in the entire context of
the letter is to draw so strained a meaning as to be inadmissibly
unreasonable.