After passing the New York bar examinations in 1936, petitioner
was denied admission to the Bar because of an adverse report by a
Committee of lawyers appointed by the Appellate Division to
investigate and report on the character and fitness of applicants.
In the latest of several efforts to gain admission, he petitioned
the Appellate Division for leave to file a
de novo
application, and he alleged,
inter alia, that, in
connection with hearings before the Committee on his 1937
application, he was shown a letter from a New York attorney
containing various adverse statements about him; that a member of
the Committee promised him a personal confrontation with that
attorney, but that promise was never kept; and that another lawyer
intended "to destroy" him, and was acting in collusion with the
Secretary and two members of the Committee. The Appellate Division
denied the petition without opinion. In the State Court of Appeals,
petitioner alleged that he had never been afforded an opportunity
to confront his accusers or to cross-examine them, and that he
could not be sure of the Committee's reasons for refusing to
certify him for admission. After granting leave to appeal,
obtaining the file from the Appellate Division, receiving briefs,
and hearing arguments, the Court of Appeals affirmed the order of
the Appellate Division without opinion, but it amended its
remittitur to recite that it had necessarily passed upon a question
under the Federal Constitution, and held that petitioner was not
denied due process of law in violation of the Fifth and Fourteenth
Amendments.
Held: Petitioner was denied procedural due process when
he was denied admission to the bar by the Appellate Division
without a hearing before either the Committee or the Appellate
Division on the charges filed against him. Pp.
373 U. S.
97-106.
(a) The issue presented is justiciable, since the claim of
present right to admission to the Bar of a State and the denial of
that right is a controversy. P.
373 U. S.
102.
Page 373 U. S. 97
(b) The requirements of procedural due process must be met
before a State can exclude a person from practicing law. P.
373 U. S.
102.
(c) Procedural due process often requires confrontation and
cross-examination of those whose word deprives a person of his
livelihood. Pp.
373 U. S.
103-104.
(d) Where, as here, the Appellate Division held no hearings of
its own to determine petitioner's character, but relied entirely
upon the report of the Committee, it cannot escape the requirements
of due process by claiming that the Committee's action was merely
advisory. P.
373 U. S.
104.
(e) In view of the certification by the Court of Appeals that it
"necessarily" ruled on the constitutional issue "presented," it
cannot be said that petitioner sought relief too late. P.
373 U. S.
104.
(f) Petitioner was clearly entitled to notice of, and a hearing
on, the grounds for his rejection, either before the Committee or
before the Appellate Division. Pp.
373 U. S.
104-105.
11 N.Y.2d 866, 182 N.E.2d 288, reversed.
Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR.
JUSTICE BLACK.
Petitioner passed the New York bar examinations in 1936, but has
not yet been admitted to practice. The present case is the latest
in a long series of proceedings whereby he seeks admission.
Under New York law, the Appellate Division of the State Supreme
Court of each of the four Judicial Departments
Page 373 U. S. 98
has power to admit applicants to the Bar. Once the State Board
of Bar Examiners certifies that an applicant has passed the
examination (or that an examination has been dispensed with), the
Appellate Division shall admit him to practice "if it shall be
satisfied that such person possesses the character and general
fitness requisite for an attorney and counsellor-at-law." Judiciary
Law, § 90(1)(a).
The Appellate Division is required by Rule 1 of the New York
Rules of Civil Practice to appoint a committee of not less than
three practicing lawyers "for the purpose of investigating the
character and fitness" of applicants. "Unless otherwise ordered by
the appellate division, no person shall be admitted to practice"
without a favorable certificate from the Committee.
Ibid.
Provision is made for submission by the applicant to the Committee
of "all the information and data required by the committee and the
Appellate Division justices."
Ibid. If an applicant has
once applied for admission and failed to obtain a certificate of
good character and fitness, he must obtain and submit "the written
consent" of the Appellate Division to a renewal of his application.
Ibid.
The papers of an applicant for admission to the Bar are required
by Rule 1(g) of the Rules of Civil Practice to be kept on file in
the Office of the Clerk of the Appellate Division.
The Court of Appeals, pursuant to its rulemaking authority,
(Judiciary Law, § 53(1)) has promulgated Rules for the Admission of
Attorneys and Counsellors-at-Law which provide,
inter
alia, that every applicant must produce before the Committee
"evidence that he possesses the good moral character and general
fitness requisite for an attorney and counsellor-at-law" (Rule
VIII-1), and that justices of the Appellate Division shall adopt
"such additional rules for ascertaining the moral and general
Page 373 U. S. 99
fitness of applicants as to such justices may seem proper." Rule
VIII-4.
The Appellate Division to which petitioner has made application
has not promulgated any "additional rules" under Rule VIII-4. Its
Character and Fitness Committee consists of 10 members; and that
Committee, we are advised, has not published or provided any rules
of procedure.
The statute provides that "all papers, records and documents" of
applicants "shall be sealed and be deemed private and
confidential," except that,
"upon good cause being shown, the justices of the appellate
division . . . are empowered, in their discretion, by written
order, to permit to be divulged all or any part of such papers,
records and documents."
Judiciary Law, § 90(10). And, for that purpose they may make
such rules "as they may deem necessary."
Ibid.
But New York does not appear to have any procedure whereby an
applicant for admission to the Bar is served with an order to show
cause by the Appellate Division before he is denied admission, nor
any other procedure that gives him a hearing prior to the court's
adverse action. [
Footnote
1]
Page 373 U. S. 100
The present case started with a petition by Willner to the
Appellate Division seeking leave to file a
de novo
application which alleged the following:
Willner had been certified by the State Board of Bar Examiners
as having passed the bar examinations in 1936, and the Committee,
in 1938, after several hearings, filed with the Appellate Division
its determination that it was not satisfied, and could not "certify
that the applicant possesses the character and general fitness
requisite for an attorney and counsellor-at-law." In 1943, Willner
applied to the Appellate Division for an order directing the
Committee to review its 1938 determination. This motion was denied
without opinion. Willner, in 1948, again petitioned the Appellate
Division for a reexamination of his application, and for permission
to file a new application. The Appellate Division permitted him to
file a new application. Upon the filing of that application, the
Committee conducted two hearings in 1948, and, by a report in 1950,
refused to certify him for the second time. In 1951, Willner again
made application to the Appellate Division for an order directing,
inter alia, the Committee
Page 373 U. S. 101
to furnish him with statements of its reasons for its refusal to
certify him or that a referee be appointed to hear and report on
the question of his character and fitness. This application was
denied without opinion. In 1954, Willner filed a fourth application
with the Appellate Division requesting leave to file an application
for admission. This was denied without opinion. The Court of
Appeals refused leave to appeal, and this Court denied certiorari.
348 U.S. 955. In 1960, Willner filed a fifth application with the
Appellate Division, which application was denied without
opinion.
The present petition further alleged that Willner has been a
member in good standing of the New York Society of Certified Public
Accountants and of the American Institute of Accountants since
1951, and that he has been admitted to practice before the Tax
Court and the Treasury Department since 1928. Petitioner alleged
that, in connection with his hearings before the Committee on his
1937 application, he was shown a letter containing various adverse
statements about him from a New York attorney; that a member of the
Committee promised him a personal confrontation with that attorney;
but that the promise was never kept. Petitioner also alleged that
he had been involved in litigation with another lawyer who had as
his purpose "to destroy me"; that the secretary of the Committee
was taking orders from that lawyer, and that two members of the
Committee were "in cahoots" with that lawyer.
The Appellate Division denied the petition without opinion and
denied leave to appeal to the Court of Appeals. Willner thereupon
sought leave to appeal to the Court of Appeals, and, in an
affidavit in support of his motion, stated,
"I was never afforded the opportunity of confronting my
accusers, of having the accusers sworn and cross-examining them,
and the opportunity of refuting the accusations and accusers. "
Page 373 U. S. 102
The Court of Appeals granted leave to appeal, and the Clerk of
that Court obtained from the Clerk of the Appellate Division the
file in the case. Willner, in his brief before the Court of
Appeals, argued he had been denied his constitutional rights in
that he had been denied confrontation of his accusers, and that, in
spite of the repeated attempts, he could not be sure of the
Committee's reasons for refusing to certify him for admission. The
Court of Appeals, after oral argument, affirmed the order without
opinion. 11 N.Y.2d 866, 227 N.Y.S.2d 682, 182 N.E.2d 288.
Thereafter at Willner's request, the Court of Appeals amended its
remittitur to recite that
"Upon the appeal herein, there was presented and necessarily
passed upon a question under the Constitution of the United States,
viz.: Appellant contended that he was denied due process
of law in violation of his constitutional rights under the Fifth
and Fourteenth Amendments of the Constitution. The Court of Appeals
held that appellant was not denied due process in violation of such
constitutional rights."
We granted certiorari, 370 U.S. 934.
The issue presented is justiciable. "A claim of a present right
to admission to the bar of a state and a denial of that right is a
controversy."
In re Summers, 325 U.
S. 561,
325 U. S. 568.
Moreover, the requirements of procedural due process must be met
before a State can exclude a person from practicing law.
"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 Clause of the
Fourteenth Amendment."
Schware v. Board of Bar Examiners, 353 U.
S. 232,
353 U. S.
238-239. As the Court said in
Ex parte
Garland, 4 Wall. 333,
71 U. S. 379,
the right is not "a matter of grace and favor."
Page 373 U. S. 103
We are not here concerned with grounds which justify denial of a
license to practice law, but only with what procedural due process
requires if the license is to be withheld. This is the problem
which Chief Justice Taft adverted to in
Goldsmith v. Board of
Tax Appeals, 270 U. S. 117,
involving an application of a certified public accountant to
practice before the Board of Tax Appeals. Chief Justice Taft
writing for the Court said:
"We think that the petitioner, having shown by his application
that, being a citizen of the United States and a certified public
accountant under the laws of a state, he was within the class of
those entitled to be admitted to practice under the board's rules,
he should not have been rejected upon charges of his unfitness
without giving him an opportunity by notice for hearing and answer.
The rules adopted by the board provide that 'the board may in its
discretion deny admission, suspend or disbar any person.' But this
must be construed to mean the exercise of a discretion to be
exercised after fair investigation, with such a notice, hearing and
opportunity to answer for the applicant as would constitute due
process."
Id., p.
270 U. S.
123.
We have emphasized in recent years that procedural due process
often requires confrontation and cross-examination of those whose
word deprives a person of his livelihood.
See Greene v.
McElroy, 360 U. S. 474,
360 U. S. 492,
360 U. S.
496-497, and cases cited. [
Footnote 2] That view has been taken by several state
courts when it comes to procedural due process and the admission to
practice law.
Coleman v. Watts, 81 So. 2d
650;
Application of Burke, 87 Ariz. 336,
351 P.2d 169;
In re Crum, 103 Or. 296, 204 P. 948;
Moity v.
Page 373 U. S. 104
Louisiana State Bar Ass'n, 239 La. 1081,
121 So. 2d
87.
Cf. Brooks v. Laws, 92 U.S.App.D.C. 367, 208 F.2d
18, 33 (concurring opinion). We think the need for confrontation is
a necessary conclusion from the requirements of procedural due
process in a situation such as this.
Cf. Greene v. McElroy,
supra; Cafeteria Workers v. McElroy, 367 U.
S. 886.
This result is sought to be avoided in several ways. First, it
is said that the Committee's action is merely advisory, that it is
an investigator, not a trier of facts, since, under § 90 of the
Judiciary Law, it is the Appellate Division that ultimately must be
convinced of an applicant's good character. The answer is that
"[u]nless otherwise ordered by the Appellate Division" (New York
Rules of Civil Practice, Rule 1(d)), a favorable certificate from
the Committee is requisite to admission by the Appellate Division;
and where, as here, the Appellate Division has held no hearings of
its own to determine an applicant's character, the role of the
Committee is more than that of a mere investigator.
Second, it is said that petitioner has sought relief too late.
But the Court of Appeals did not reject his petition on that
ground. Instead, it stated that it "necessarily" ruled on the
constitutional issue "presented." We can only conclude that the
Court of Appeals would have found it "unnecessary" to pass upon any
constitutional question if, under state law, some other ground had
existed for denying petitioner relief.
See Cincinnati Packet
Co. v. Bay, 200 U. S. 179,
200 U. S. 182;
Lynumn v. Illinois, 372 U. S. 528,
372 U. S.
535-536.
Third, it is said that the record shows that petitioner was not
rejected on the basis of
ex parte statements but on the
basis of his own statements to the Committee. If the Court of
Appeals reached this conclusion, the only constitutional question
which was presented and which it could have "necessarily" passed on
was whether petitioner was denied due process by not being informed
of and
Page 373 U. S. 105
allowed to rebut the bases for either the Committee's or the
Appellate Division's failure to find his good character. It does
not appear from the record that either the Committee or the
Appellate Division at any stage in these proceedings, ever apprised
petitioner of its reasons for failing to be convinced of his good
character. Petitioner was clearly entitled to notice of and a
hearing on the grounds for his rejection either before the
Committee or before the Appellate Division.
Goldsmith v. Board
of Tax Appeals, supra; cf. In re Oliver, 333 U.
S. 257,
333 U. S. 273.
There seems no question but that petitioner was apprised of the
matters the Committee was considering.
"But a 'full hearing' -- a fair and open hearing -- requires
more than that. . . . Those who are brought into contest with . . .
Government in a
quasi-judicial proceeding aimed at the
control of their activities are entitled to be fairly advised of
what the Government proposes and to be heard upon its proposals
before it issues its final command."
Morgan v. United States, 304 U. S.
1,
304 U. S. 18-19.
Petitioner had no opportunity to ascertain and contest the bases of
the Committee's reports to the Appellate Division, and the
Appellate Division gave him no separate hearing. Yet,
"[t]he requirements of fairness are not exhausted in the taking
or consideration of evidence, but extend to the concluding parts of
the procedure, as well as to the beginning and intermediate
steps."
Id. at
304 U. S. 20.
Cf. Gonzales v. United States, 348 U.
S. 407,
348 U. S.
414.
If the Court of Appeals based its decision on the ground that
denying petitioner the right of confrontation did not violate due
process, we also hold that it erred for the reasons earlier stated.
But because respondent has asserted that the
ex parte
statements involved in this case played no part in any of the
decisions below, we have searched the record to assess this
contention. It shows that the
Page 373 U. S. 106
Committee had several complaints against petitioner. The various
intra-Committee memoranda and reports to the Appellate Division
contained in this record support the conclusion that the Committee
did in fact rely on these complaints, at least to some extent, in
reaching its determinations. And there is no indication in the
record that any of the Appellate Division's orders were based
solely on petitioner's own statements. Thus, despite respondent's
assurances that the Committee never bases its final action on
ex parte statements, we cannot say that the Court of
Appeals erred in concluding that this constitutional question was
"necessarily" decided.
We hold that petitioner was denied procedural due process when
he was denied admission to the Bar by the Appellate Division
without a hearing on the charges filed against him before either
the Committee or the Appellate Division.
Reversed.
[
Footnote 1]
In New Jersey the Committee on Character and Fitness is directed
by Rule 1:20-6(a) of the Supreme Court Rules to take the following
steps in case of an adverse report:
"If the committee believes that an applicant is not of fit
character or has not served a satisfactory clerkship, it shall
promptly notify the applicant of its intention to file an adverse
report as to his moral character or clerkship and of the time, not
less than 5 days, within which the applicant may file with the
committee a written request for a hearing. If the applicant does
not request a hearing within the time fixed by the committee, it
shall promptly notify him of its action and file its report with
the court for appropriate action by it. If the applicant requests a
hearing within the time fixed by the committee, it shall promptly
notify him of the time and place of the hearing. The hearing shall
be conducted in private and in a formal manner. A complete
stenographic record shall be kept, and, to this end, an official
court reporter of the county, assigned by the supervising court
reporter for that purpose, shall serve the committee and prepare,
without additional compensation, such transcripts as may be ordered
by it. A transcript may be ordered by the applicant at his own
expense. The committee shall submit a report of its findings and
conclusions to the court, with a copy to the applicant, for
appropriate action by it. An applicant aggrieved by the
determination of the committee may, on notice to the committee,
petition the court for relief."
Rule 1:20-6(b) goes on to provide:
"The Board of Bar Examiners, subject to the approval of the
court, shall prescribe the procedures to be followed by the
committees on character and fitness in the performance of their
duties under paragraph (a) of this rule."
[
Footnote 2]
Cf. Cafeteria Workers v. McElroy, 367 U.
S. 886, where only "the opportunity to work at one
isolated and specific military installation" was involved.
Id. at
367 U. S.
896.
MR. JUSTICE GOLDBERG, whom MR. JUSTICE BRENNAN and MR. JUSTICE
STEWART join, concurring.
I concur in the opinion and judgment of the Court, believing, as
I do, that, under all of the circumstances here, the petitioner was
denied procedural due process which the Constitution demands be
accorded by the States to applicants for admission to the bar. No
conflict exists between constitutional requisites and exaction of
the highest moral standards from those who would practice law.
See Schware v. Board of Bar Examiners, 353 U.
S. 232,
353 U. S.
238-239. Certainly lawyers and courts should be
particularly sensitive of, and have a special obligation to
respect, the demands of due process. This special awareness,
however, does not alter our essential function or duty. In
reviewing state action in this area, as in all others, we look to
substance, not to bare form, to determine
Page 373 U. S. 107
whether constitutional minimums have been honored.
The New York admissions procedures described in the opinion of
the Court are fairly characteristic of those prevalent throughout
the country. In general, they contemplate that an applicant for
admission who has successfully passed the bar examination will file
an application before a court-appointed committee of lawyers which
conducts an inquiry into his moral character and, on the basis
thereof, recommends the grant or denial of admission by the court.
Committee proceedings are often informal and, for the protection of
the candidate, are generally not publicized. Committee members are
usually unpaid, and serve in fulfillment of their obligation to the
profession and as officers of the court. They perform an
indispensable and very often thankless task. While the vast
majority of candidates are approved without difficulty, in
exceptional cases, such as this, either information supplied by the
applicant himself or material developed in the course of the
committee's investigation gives rise to questions concerning the
applicant's moral character.
The constitutional requirements in this context may be simply
stated: in all cases in which admission to the bar is to be denied
on the basis of character, the applicant, at some stage of the
proceedings prior to such denial, must be adequately informed of
the nature of the evidence against him and be accorded an adequate
opportunity to rebut this evidence. As I understand the opinion of
the Court, this does not mean that, in every case, confrontation
and cross-examination are automatically required. It must be
remembered that we are dealing, at least at the initial stage of
proceedings, not with a court trial, but with a necessarily much
more informal inquiry into an applicant's qualifications for
admission to the bar. The circumstances will determine the
necessary limits and incidents implicit in the concept of a "fair"
hearing. Thus, for
Page 373 U. S. 108
example, when the derogatory matter appears from information
supplied or confirmed by the applicant himself, or is of an
undisputed documentary character disclosed to the applicant, and it
is plain and uncontradicted that the committee's recommendation
against admission is predicated thereon and reasonably supported
thereby, then neither the committee's informal procedures, its
ultimate recommendations, nor a court ruling sustaining the
committee's conclusion may be properly challenged on due process
grounds, provided the applicant has been informed of the factual
basis of the conclusion and has been afforded an adequate
opportunity to reply or explain. Of course, if the denial depends
upon information supplied by a particular person whose reliability
or veracity is brought into question by the applicant,
confrontation and the right of cross-examination should be
afforded. Since admission to the bar is ultimately a matter for the
courts, there is ample power to compel attendance of witnesses as
required.
Application of these principles of this case leads me to concur
in the Court's opinion and judgment. The record here, to say the
least, is complex, muddled, and in many respects unsatisfactory. We
are dealing with an applicant who first applied for admission 25
years ago. Comparison of his applications with facts later
confirmed by the petitioner himself suggests a lack of complete
candor in dealing with the committee. While this failure to
disclose, along with other more recently occurring matters here
present, might have supported a refusal to certify the petitioner's
character, there are present additional elements which indicate
that the committee may have been motivated in its conclusion by
charges made against the petitioner by certain informants, the
evaluation of which would necessarily depend upon estimates of
credibility. The record is not clear whether the petitioner
actually requested an opportunity to confront and cross-examine
Page 373 U. S. 109
these informants at the time of his first application in the
late 1930's. It is plain, however, that he now seeks that
opportunity, and there is no indication that the state court
considered the claim to be untimely. Moreover at no point are we or
the petitioner specifically advised by any finding of the committee
or of the state courts as to the precise basis of denial to him of
either his original or renewed applications for admission or his
requests for reconsideration thereof. In substance, therefore, as
the case reaches us, we are confronted with circumstances which,
upon sifting, may or may not support the denial of admission to the
bar. And our difficulties are compounded by the amended remittitur
of the New York Court of Appeals, which is fairly susceptible to
the reading given it in the Court's opinion -- that confrontation
is not constitutionally required in a bar admission case such as
this in which the character committee appears to have relied at
least in part, for its adverse recommendation, upon contradicted
information supplied by informers whose credibility was challenged
by the applicant. The net result to me, therefore, is that this
case, whatever it started out to be, has become one in which due
process requires either
de novo consideration of the
petitioner's application or an orderly sorting out of the issues
and an articulated and constitutionally grounded decision on the
merits of the petitioner's claims to admission. New York procedures
are, I am sure, adequate to effect the proper result upon
remand.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins,
dissenting.
The majority and concurring opinions bear witness to the
difficulty the Court has had divining from this messy and opaque
record whether the case in truth presents a substantial federal
question. Obviously much influenced by the amended remittitur of
the Court of Appeals, the
Page 373 U. S. 110
Court considers that the state courts have held that an
applicant for membership in the New York Bar may be denied
admission without having had the opportunity at any stage to
confront persons whose unfavorable information may have led the
Character Committee to refuse to certify the candidate's "character
and fitness."
It would take a great deal to persuade me that either of these
experienced and respected New York courts has been guilty of such a
questionable constitutional holding. In light of the record, I do
not believe that either the Court of Appeals' affirmance or its
amended remittitur by any means points to the interpretation which
this Court now places on the action of that court. In my view, the
more reasonable, and correct, interpretation is that the Court of
Appeals simply held that, in light of what had gone before,
[
Footnote 2/1] the Appellate
Division's refusal to
Page 373 U. S. 111
entertain petitioner's last
de novo application for
admission -- the eighth proceeding before that court -- involved no
abuse of its discretion under Rule 1 of the New York Rules of Civil
Practice. More particularly, in these prior proceedings, no
confrontation claim was raised until 1954 -- some 16 years after
the original denial of admission -- during which period the matter
had already been before the Appellate Division five times
(
373 U.S.
96fn2/1|>note 1,
supra). [
Footnote 2/2]
Page 373 U. S. 112
So interpreting the Court of Appeals' action, I do not think
this case presents a substantial federal question -- no more so
than did the petition for certiorari which was filed here in 1955,
raising this same confrontation question in almost the same context
of prior proceedings, and which this Court then denied.
In re
Willner, 348 U.S. 955.
Now that plenary consideration has shed more light on this case
than in the nature of things was afforded at the time the petition
for certiorari was acted upon, I think the proper course is to
dismiss the writ as improvidently granted.
[
Footnote 2/1]
The chronology of events was in substance this: the Appellate
Division, upon the Character Committee's refusal to certify the
applicant, originally denied admission in 1938. Refusal of
certification had followed petitioner's appearance before the
Committee at which, among other things, he had been informed and
interrogated about complaints received from two lawyers, Wieder and
Dempsey. (Wieder charged that petitioner had not completed his
required "clerkship," having been discharged from Wieder's office
for unsatisfactory performance before the end of the clerkship
period. Dempsey's complaint related to certain litigation involving
petitioner and one of Dempsey's clients, in which petitioner had
been charged with fraud in connection with accountancy services
performed for the client.) Apart from these
ex parte
charges, petitioner in his return to the Committee's written
questionnaire, had (1) stated that he had not been connected with
any law offices, although in a later interview he had informed the
Committee that he had in fact been employed in Weider's office for
a short time; (2) stated that he had served "no clerkship,"
although he had subsequently informed the Committee of the filing
of a certificate of clerkship with the Court of Appeals in Albany;
(3) failed to disclose the aforementioned suit brought against him
by Dempsey's client; (4) failed to disclose an annulment suit that
had been brought against him by his 16-year-old wife, later stating
that he had omitted this information because "Some people consider
it a heinous offense"; and (5) failed to include six other suits or
judgments against him among those listed in the questionnaire. The
Committee characterized petitioner's demeanor as one of "general
evasiveness."
Although he made no contemporary effort to obtain review of the
original denial of admission, petitioner thereafter sought to
attack it before the Appellate Division on four successive
occasions during the years 1943-1951 -- all to no avail. Again, he
sought no review of any of these proceedings, one of which involved
a
de novo hearing before the Character Committee, and in
none does he appear to have raised the confrontation claim now made
here.
Lack of confrontation seems to have been asserted for the first
time in 1954, when petitioner again unsuccessfully moved the
Appellate Division for a leave to file a
de novo
application for admission. Leave to appeal to the New York Court of
Appeals, sought then for the first time, was denied, and this
Court, in turn, denied certiorari. 348 U.S. 955.
Finally, in 1960 and 1961, petitioner twice more unsuccessfully
moved the Appellate Division for leave to file a
de novo
application for admission, the latter proceeding being the one
presently before the Court.
[
Footnote 2/2]
In his petition initiating the present proceeding, petitioner
alleged that, during the interviews held in connection with his
original application, the Chairman of the Character Committee
promised him "a confrontation." The record, however, discloses no
such episode. Indeed, at the third Committee hearing in 1938,
petitioner was asked whether he had anything further to present,
and he responded simply by referring to one of the affidavits
submitted on his behalf purporting to refute the Wieder charge
(
373 U.S.
96fn2/1|>note 1,
supra). He made no request for
confrontation.