Earl Warren: Number 28 Raphael Konigsberg, Petitioner, versus State Bar of California et al.
Edward Mosk: Mr. Chief Justice, Associate Justices. We've had a somewhat unusual, I think, for the Court situation this afternoon in a situation of a petitioner speaking for himself. I think perhaps in the Konigsberg case, we come in to a second somewhat unusual situation in that we have a case here for the second time on at least what from the point of view of the petitioner would seem to us to be almost identical facts as have already been determined by this Court. I, of course, am well aware of the theory under which the State of California acting through the Committee of Bar Examiners has brought this case before you a second time by declining to admit the petitioner after the decision of this Court. So that I think that I should commence by reviewing the facts as they have occurred, bringing us down first to the present moment of this second Konigsberg case. The Court will remember that on May 6th, 1957, this Court said about the petitioner without some authentic reliable evidence of unlawful or immoral actions reflecting upon him, it is difficult to comprehend why the State rejected a man of Konigsberg's background and character as morally unfit to practice law. Now, in California, there are two statutes which come in to play in connection with admissions of -- of perspective applicants for the Bar. We have the business and professions called Section 6060 which simply, along with age and education requirements, establishes that a person must be of good moral character. And then we have Section 6064.1 which says that no person who advocates overthrow of the Government by force and violence maybe a member of the Bar. Now, as far as petitioner is concern, these are the only two statutes that are really involved in this case at the present time. Konigsberg comments the study of law in September of 1950 at the University of Southern California. He registered his intention to take the bar examination with the Committee of Bar Examiners in accordance with the normal procedures in December of 1950. His previous background was somewhat unusual for a law student in that he was already 39 years old had already had a distinguished career in social work in the community of Los Angeles and other parts of the country. He had a master's degree at Ohio State University. He had, at one time, been a supervisor in the Department of Health here in the District of Columbia. He had been director of Social Services for the City of Hope Sanatorium in Los Angeles. He had been a district director of relief in the State of California. During the war, he had spent some four years in the army and had come out with the rank of captain in the United States Army. Nevertheless, when the time came for him to take the bar examination, he was called in by the Committee Bar Examiners, which in California, under our integrated bar system, differing in that extent from Illinois, has the power to recommend to the Supreme Court but in California, the Supreme Court does the admitting of respective app -- applicants for the Bar. He was called then and certain hearings were conducted of which the record was before this Court in its entirety in the case which was decided in 1957. At the conclusion of the hearings in 1953 and 1954, the Supreme Court of California declined to review a determination by the Committee of Bar Examiners that the petitioner had not met his burden of proof that he was a person of good moral character or that he did not advocate overthrow of the Government by force and violence. The petition for review was made to the Supreme Court of California. And although three of the judges voted for a hearing, no hearing was held in the Supreme Court of California and the matter came to this Court on a petition for certiorari. The decision of this Court, of course, is 353 U.S. 252, the case of Konigsberg versus State Bar. Now, after the mandate from this Court came down to California, the petitioner, acting through counsel, requested the Supreme Court of California, which was not then in session, to set a time for hearing for the petitioner to be sworn in as a member of the Bar assuming that the -- that the opinion of this Court instructing the State of California to take action not inconsistent with the decision could only mean that petitioner should be admitted to the Bar. The considerable period of time passed in which the Supreme Court of California did not act and then finally, the Supreme Court vacated its previous orders in the matter and sent the matter to the Committee of Bar Examiners with instructions of the Committee of Bar Examiners should take action not inconsistent with the Supreme Court decision. At that time, the petitioner then requested of the Committee of Bar Examiners of the State of California that the Committee of Bar Examiners simply make a recommendation that petitioner be admitted to the Bar of the State of California. Instead, the Committee of Bar Examiners called further hearings and the record, which is before this Court in the present proceeding, consists of the hearing before the Committee of Bar Examiners. Now, when the hearing was held, petitioner again initially said, "There is no point to this hearing. We have established the basic qualifications for admission to the Bar in California. And we believe that the only action inconsistent with the Court decision is an order admitting -- certifying me to admission to the Bar." The Committee turned down this motion and then asked petitioner whether he was prepared to answer other questions and petitioner indicated that he was. The petitioner, at the subsequent hearing, introduced additional letters, some 14 or 15, now making a total of about 55 communications from persons in all walks of life in the Los Angeles community and elsewhere in the country, attesting to his good moral character and for the most part of testing to the fact that -- to the knowledge of the persons writing the letters that he did not advocate overthrow of the Government. But at the first hearings and before this Court, in the briefs of the State Bar, there had been some comments to the fact that these letters really were not of great significance because they were in written form and there was no opportunity to cross-examine. And so at this hearing, the petitioner added to the strength of this record. He offered the persons who had written the letters to be available for cross-examination but in addition to that, he brought his employer for the previous two and a half years as one live witness ready to testify before the Committee and submitting himself to the cross-examination of the Committee if they so wished as to petitioner's good moral character. The witness testified and at the conclusion of the testimony, the Committee was asked whether they have any questions in cross-examination and they indicated they had none. Now, what did the Committee do at this hearing? The Committee introduced not one single bit of evidence to contradict the good moral character already established to the petitioner. They introduced no evidence of any kind regarding advocacy. As a matter of fact, they introduced no evidence, period. The Committee admitted that subsequent to the decision of this Court, the Committee had had an investigator who investigated into the background of the petitioner and stated specifically that if they had any information contrary to good moral character or indicating advocacy on the part of the petitioner, that they would bring this information forward and allow petitioner to rebut it before it would be used in any manner against him. This is never been done. It is safe to assume that the investigator found nothing wrong in the background or life of the petitioner. In addition, the Committee failed to cross-examine. And the only change, the only change in the record so far is the Committee is concern from that which was before this Court at the time of the prior decision was that the Committee asked again the same questions which it had asked in the record before this Court in 1957. They again asked the petitioner whether he was a member of the Communist Party. And this time, they changed the record only to the extent that they did give him a verbal, across the table warning in the sense that they said, "If you do not answer this question, it will prevent us from further investigating and therefore, it may make it impossible for us to certify you." Now, other than that, there is not one single change in the record that was before this Court in the -- prior to the decision in 1957 and the record that is before this Court today. Now, petitioner pointed out at this hearing that the principal reasons which he had given before for not answering the question still prevail that as a matter of fact, he felt that he -- there was certain basis for a reinforcement of his principal position by reason of the Supreme Court decision. And he took basically the position that one of the requirements upon him was that he be of good moral character. If he had constantly, as he had, both before this Court and before the Committee, taken the position that it was a morally improper for him to respond to these questions, that the Committee was, in effect, placing him in the position where they said, "If you do not answer the questions, then we will not certify you. But in effect, if you do answer the questions, you will buy your own definition be saying that you are an immoral person because for purposes of expediency, you are willing to answer the questions which your moral principles say you should not answer." This was the dilemma that the Committee was placing him at. And of course, he stood on the moral principles and declined to answer the specific questions. Now, it's evident that so far as the evidence before this Committee is concerned, any change in the posture of the case is a change more favorable to Konigsberg because not only do we have the record of the favorable comments of the people in his community that we had before, we now have additional comments. We have a live witness who testified and gave the opportunity for cross-examination and we have the concession on the part of the Committee of Bar Examiners that there are investigations into the background and life of Konigsberg had achieved nothing by way of information that would be detrimental to his good moral character. So that if the record of this case in 1957 could not rationally show a basis for refusing to admit the petitioner, we would submit that such a conclusion is even less reasonable today. And that simply based on this record and based on the decision of this case, we would submit the petitioner, based on the mandate of this Court, should have been admitted and this Court should make such an order. But the Committee seemed to be of the belief that in the decision of this Court in 1957, there was some sort of an open door through which they could walk and find a means that this Court was -- was giving them a basis by which they could deny Konigsberg admission to the Bar. This was really the only conclusion that one can draw from the manner of procedure by which the Committee of Bar Examiners followed up the decision of this Court. I think then that we should examine this open door type argument and see whether there is any merit to it. Now, obviously, counsel cannot very well endeavor to interpret what this Court did intend by the decision in 1957 other than by a reasonable and logical reading of the words of the Court. And therefore, without presuming to try and read into the decision more than appears on the words, I will endeavor to see whether this door really was intended to be left open for the Committee of Bar Examiners. First, I think, we must consider the elemental unfairness of the position taken by the Committee of Bar Examiners. We must remember first of all, as I indicated the beginning, that there were two statutory bases in California under which petitioner might have been denied admission to the Bar. There's no argument that he meets all of the other requirements. There is no argument that he has passed the bar examination, that he is of proper age. All of these requirements have been clearly met. So that the only two statutory requirements that seemed to be in any way involved in this case are the statutory requirements of good moral character and the statutory requirement that he'd not advocate overthrow of the Government. Now, the evidence relating to these factors was all in the record of this Court prior to the 1957 decision. And the Court found contrary to the position of the State of California. The Court specifically said that it could not see how the State of California could've refused admission to a person of Konigsberg's background and said in this opinion that the evidence did not support a finding that he was not of good moral character or that he was not a person who did not advocate overthrow of the Government by force and violence. Now, Mr. Justice Peters, in his dissent in the California Supreme Court on this second Konigsberg case, stated the theme, I think as clearly as it -- it can be stated. Mr. Justice Peters said, "How many times does the issue of whether an applicant possesses a good moral character and as a loyal citizen have to be tried? When does this litigation come to an end? I had always though until I read the decision of the majority," referring to the majority to California court, in this case, "that our system of law was predicated on the fundamental theory that when issues between litigants have once been determined, they cannot be re-litigated. I had always thought that litigants were required to raise all relevant issues in one proceeding. I had assumed the parties cannot litigate their case piecemeal." And Mr. Justice Peters concluded and we believe rightly, although the majority of the California court did not agree with him, that to permit respondent, the State in this case, to lose on one theory and approach to the case and then readjust the record to conform to some new theory, picking out a few words in the decision of the court on the very case is fundamentally unfair, it's arbitrary, it's capricious and it's a denial of due process. And we submit that this is what the State of California has done in this, the Konigsberg case. But let's examine the language of the Court in this Konigsberg case and determine how it applies to the facts of the case as it now stand as the present posture of the case. What did the Court say that lead the State of California to this peculiar interpretation that they were not to then admit Konigsberg to the Bar? The language which they seem to up seized upon reads, "If and when a State makes failure to answer an independent -- makes failure to answer an independent ground for exclusion, then this Court, as the cases arise, will have to determine whether the exclusion is constitutionally permissible." Now, California somehow seems to have taken this statement as some sort of a mandate or a directive for them to take some action against Konigsberg. And I submit that this is directly contrary to the clear import of these words. California completely ignored the words preceding this in the decision which said, "There is nothing in the California statutes, the California decisions or even in the rules of the Bar Committee which suggest that this is a proper procedure for them to take." And the opinion then goes on to point out that establishing such a rule now without fair warning would raise questions with elemental fairness. So California seizes upon this language of -- of fair warning and somehow comes to the conclusion that just sitting down across the table with the very man who has been involved in the lawsuit which has already been determined by the Court and that all they had to do is sit out across the table from him and give him a fair warning now 10 years after he started the practice of law and that this complied with the requirements of due process.
John M. Harlan II: Is it not true that the majority of your court has held in this case that refusal to answer relevant pertinent questions is a ground for denial in the California (Inaudible) admission to the Bar?
Edward Mosk: This is, in effect, Mr. Justice Harlan, this is what the California case has said in this case and at this late date, that is correct.
John M. Harlan II: (Voice Overlap) said it. I mean it's not nearly in effect. That's the basis of its holding, isn't it?
Edward Mosk: The basis of what?
John M. Harlan II: That's what it's held.
Edward Mosk: This is the holding in the second Konigsberg case. That is correct, Your Honor. Now -- which, of course, the reason we are here is that we disagree with that holding and feel that that holding is completely an error.
John M. Harlan II: That holding is one that binds us.
Edward Mosk: That holding --
John M. Harlan II: That holding on state law is one which we have to accept, the California courts' view on.
Edward Mosk: I -- I think not, Your Honor. I think not. And I -- in -- in a moment, I -- I will meet directly to that point. Now, the State of California has, as I say, seized upon this warning point as the basis upon which they now feel that they have complied in some manner with this Court's decision. But I think it's important, in determining the elemental fairness of what's taken place here, to examine the nature of the warning, the timing of the warming -- warning to see whether or not that warning did in fact comply with the requirements of due process. First of all, this warning took place simply by the Chairman of the Committee of Bar Examiners sitting in this session stating to the petitioner, "This is what we are saying to you that if you do not answer the question, this can be a basis for us refusing to certify." But we must remember that this took place seven years after this petitioner commenced the study of law. We must remember that this was four years after he had completed his studies and had passed the bar examination. And this was almost six months after this Court had ruled on the identical facts relating to the same identical person. Now, there was no statute in California before or after which related to this subject. There was no formal rule of the Committee of Bar Examiners passed in accordance with regulations which the Committee of Bar Examiners and the State of California had in effect self-imposed upon them because we have in California a provision which says that the Committee of Bar Examiners may pass a rule approved by the Board of Governors of the State Bar of California. Now, if the Committee was endeavoring to say that this across the table type of warning was some sort of a new rule, they had failed to comply with their own statutory requirements. If it was anything less than that, if it was not a rule of some stature, then what effect did it have upon the man who hears this for the first time so many years after he has entered into the study of law and has begun the entire sequence of events which have led him know or seven years later to this hearing having spent the time, the money to become a member of a profession of his own choice and suddenly by an across the table without any background, without any warning to be told, "If you don't answer this one question, this in and of itself will suddenly become a basis to deny your admission to the Bar"? Now, on top of that, there are several other factors that should certainly be considered in connection with what was the stature of this kind of warning that they were talking about. This Court decided a few weeks ago, the Nelson case which involved a -- also involved the State of California. But in the Nelson case, there was a specific statute in California relating to the type of employee who is involved in the Nelson case. But we have -- there is no statute and on the contrary, there have been several efforts, as I indicate in my briefs, to pass such statutes in California justifying the kind of question that was being asked here and in every situation, those statutes were defeated by the legislative bodies of the State of California. So that not only do we not have any legislative authority for the asking of the kind of -- of -- across the table question that we have here but we have the direct contrary. We have a determination by the legislature of California being asked to pass such a law and rejecting such law. So that we submit that under these circumstances, this kind of across the table type of warning is just not a warning, even assuming that this Court intended to leave this matter open for further action in the Konigsberg case as such that this was not the kind of warning intended by this Court and does not qualify in any manner as a proper warning to him. Now --
Charles E. Whittaker: I don't understand that, would you elaborate -- I mean, what should they have done?
Edward Mosk: I'm saying this, Mr. Justice Whittaker, that if there was any type of an instruction from this Court to the State of California, and I do not believe there was, I believe that, at most, this Court was saying that if, at some time in the future, another case arising where proper warning has been given so that the person who embarked upon the study of law knew when he started that if questions were going to be asked to him and he declined to answer them that he would be denied admission. And I'm not saying that the Court indicated that this -- that grave constitutional questions would be raised even by this. But I'm saying that if any hole was left in the decision, what was being said to the State of California was either have a statute or have a rule of some sort of some stature, so that the applicant can be properly warned that there is something of -- there is something in the books that will tell him when he commences the practice of law that this is a requirement of him. Now, I say that in this case, this is not what happened at all. There was no statute before the first decision. There is no statute in the State of California today. There was no rule of the Bar Examiner's before the first decision. There is no rule of the Committee of Bar Examiners today. And to go even further, the very rules governing the Committee of Bar Examiners in the State of California require that when they pass a rule that that rule must be approved by the Board of Bar Governors before it becomes a formal rule of the Committee of Bar Examiners. So I say, what was the nature of this theme that happened at a hearing? It was not a -- it -- it was not a formal warning or a formal rule of any sort, it could be nothing more than a seven-year too late across the table comment from the Chairman of the Committee of Bar Examiners. It could be nothing more than that because there was nothing of record that gained statutory authority for the asking of this particular question.
John M. Harlan II: You mean the rules that governed and after admissions to the Bar must be those that are in effect at the time he completes his laws to the Court?
Edward Mosk: I'm not sure, Your Honor, that I would go that far. I think that what I would say is that when one combines all of the circumstances behind this particular case and add up the fact that there was no rule in existence when he commence the Bar and there was not even a rule in existence when he came up to the point where he took the examination and there was not even a rule in existence when he was at the threshold of being admitted and that rule didn't exist at the time this Court made its decision and the rule still doesn't exist. I am simply saying that when you add all of these factors together in this particular record, it seems to me that elemental unfairness is involved. Now, whether -- if the State of California or the Committee of Bar Examiners had intervened between the decision of this Court and the time they called him back and had passed some sort of a formal rule, in fairness, I would say that I think that I would be taking the same position that I am now because I think this would still be fundamentally unfair but they didn't even do that.
John M. Harlan II: There's no doubt that if he went back to the Committee and answered the question that he's refused to answer, he'd be admitted, isn't it?
Edward Mosk: I don't think there's any doubt about it. I don't think there has ever been any doubt about it, Your Honor. Now, when -- when the Committee of Bar Examiners talks in terms of a -- of some sort of an exclusionary rule, I would submit that on the basis of -- of the way the whole history of the way this has happened, they have fallen far short of giving due process to this petitioner. Now, when I say that, I certainly would not want to suggest, as I indicated to Mr. Justice Harlan, that I feel that had they come up with any such rule that I would not be making the same -- taking the same position. I think the rule even at that late date certainly has applied to this petitioner would have just been completely unfair and a denial of due process. Now, the rationale by which the Committee perceives from the asking of the question in this across the table kind of questioning to a determination that they could not certify him for admission to the Bar. Is this theory that they developed that in some manner, they were frustrated in their inquiry and that by -- since they have the responsibility to determine fitness that they have been frustrated in the purposes of their inquiry and therefore, they could not certify him. Now, I think examining this line of argument, we have to examine first what's being frustrated. How are they being frustrated in this proceeding? As I've indicated, under the California law, the only issues to be determined, as they apply to this case, at least of the moral character and the question of advocacy of force and violence. Now, on both of these issues, this Court, in its opinion, made what amounted to a finding a fact. This Court said that the petitioner had met his burden of proof and it was inconceivable under these circumstances how the court in -- how California could have denied him admission. So that we have the somewhat unusual situation applying to this particular case which perhaps would not apply to some other case of what amounted to a finding of fact on the two key issues which were before the Committee and then ultimately before the Supreme Court of -- of California. Now, California has a code section similar to most States that once they -- condition once proved to exist is -- is presumed to continue until the contrary is proved. The only change in the record, from the record before this Court in 1957, is a strengthening of the arguments in favor of a finding a good moral character, a further affirmation of bringing up-to-date of the good moral character of the petitioner. The State of California now asks the self same questions which it had asked prior to the first decision of the Court. It leaves the record in exactly the same condition that the record was in the exact same posture that it was in -- in 1957 and then somehow suggest that it has been frustrated. But if we dig a little deeper into the -- into the record, I think that the -- the whole frustration argument becomes even more ludicrous based on the record before this Court. First of all, this is not a situation of a petitioner coming before the Committee of Bar Examiners and simply without any basis at all saying I just -- I'm just not going to answer your questions. This is a case of a petitioner who, for his own moral principles, has said there is an area in which I will not answer these questions. But he said, "Ask me any questions you want about wrongdoing of any kind, I will answer any of your questions." And they asked none and they presented none. He said the question of advocacy of force and violence. He said at some points in the record that he was not satisfied as to even the constitutionality of that statute but he was not challenging that. And we have not before this Court challenge the constitutionality of this statute although we well might because the petitioner did answer any questions directed to advocacy of force and violence. And he offered time and time and time again in this record, "Bring forth any facts, bring forth any evidence, I will answer any and all of your questions in this area." So here again, he is not frustrating the Committee. He offered more than 50 character witnesses to be investigated, to be checked, to be brought before the Committee if they so wished. They have the subpoena power. They could have called any one of these 50 witnesses if there was any question about the fact of his good moral character. He brought his employer, two and a half years, who had every opportunity to know him, worked with him closely, testified that he gave him the right to sign checks on over a million dollars in his capacity as an employee and obviously, thereby indicated his faith and confidence in the character of this man. Not a single question or cross-examination by the Committee. And on top of that, the Committee had its investigator. Now, in the light of this record, one wonders about the legitimacy of this claim of frustration. It would seem to me that what we have here is that the Committee is endeavoring to treat this case as though this were a young law student of 21 or 22 years of age appearing before the Committee for the first time being asked the first two or three questions and saying, "I won't answer them," and then completely frustrating any further inquiry. But this just is not the case that we have here. And I think that this is perhaps the basic fallacy in which the State has fallen into is in assuming that they are dealing with one case when in fact, they are obviously dealing with another. So that we submit that under these circumstances and when we weigh the need of the State for the kind of information which they were seeking here in balance with the otherwise complete, complete granting of all of the information which they seek, making available anything that they want, complete cooperation except in the most limited, narrow and to be sure, First Amendment area. And when we balance this further with the need for the importance of freedom of the Bar, which I have indicated in some detail in my briefs and we'll not go into now because I'm sure that every member of this Court is as well aware of the importance of freedom of -- an independence of the Bar as anything that I could add at this time. When we weigh all of these factors in the balance, it certainly seems to me that we must -- the scales must drop very heavily on the side of Konigsberg. Now --
Felix Frankfurter: Does that apply everything you've said not right to the specific question whether you are a member of the Party since 1951?
Edward Mosk: I didn't hear the beginning, Your Honor.
Felix Frankfurter: There is this -- what you've just argued applied to his refusal to answer assuming it's an allowable question, the question whether he was a member of the Communist Party since 1951.
Edward Mosk: I would say so, yes, Your Honor.
Felix Frankfurter: Well, how can you say that was dealt with and that was no frustrations unless you can say putting to one side of the -- the impermissibility of the question? How can you say that that would invoke a line of inquiry, a trail of inquiry that theretofore that have not been searched and which may invalidate some of the evidences, the conclusions to be drawn from a whole crowd -- a whole cloud of witnesses testifying to his good character?
Edward Mosk: If it please the Court. First of all and your question has excluded the --
Felix Frankfurter: (Voice Overlap) put that --
Edward Mosk: -- question of the -- of whether it's a proper question.
Felix Frankfurter: -- put that to one side.
Edward Mosk: Yes, alright. Putting that to one side, it seems to me that we're ignoring when we say that -- that there has been a frustration. We're ignoring the fact that at some point in any inquiry, there -- there is a point where inquiry must stop without requiring the person who is inquiring to proceed further with the evidence. Now, what we have here is a judicial finding, in effect, by this Court that he was a person of good moral character.
Felix Frankfurter: On that record.
Edward Mosk: On that record.
Felix Frankfurter: On that record.
Edward Mosk: That is correct. Alright. Now, we come to the new record with the -- at the hearing subsequent to the previous decision of this Court and we're now faced with an apparent requirement that we come forward with some answers to questions which had already been asked in the previous record.
Felix Frankfurter: Not in those terms.
Edward Mosk: Oh, I -- I --
Felix Frankfurter: But -- but what -- they weren't answered.
Edward Mosk: But if it please the Court --
Felix Frankfurter: And the issues that were decided weren't that specific issues.
Edward Mosk: Well, if it please the Court, the questions were identical. The only change is the preface to the question --
Felix Frankfurter: No, not the --
Edward Mosk: -- but the questions weren't --
Felix Frankfurter: -- not the preface, the issue, the basis on which reversal was sought in. Reversal was sought here I think yourself stated on two grounds. One, if you're a man of moral character and two, if he engaged in or entertain beliefs or practice (Inaudible) of force and violence. But the specific question, which if answered one way, it leads to further inquiry, was not in that case, adjudicated here.
Edward Mosk: Well, I -- I understand the distinction that -- that you're making, Mr. Justice Frankfurter, but it seems to me that it is not a distinction that is justified under the facts of the whole case. The fact is that the questions asked at the first hearing and prior to the adjudication of the Court here, and the question asked at the second hearing were identical probably even word per word the same. Now, based upon that, this Court did make a finding that he was of good moral character and that he did not advocate.
Felix Frankfurter: You make the whole question when you said based upon it. Based upon what?
Edward Mosk: Based upon a record --
Felix Frankfurter: Not that he refused to answer that question.
Edward Mosk: But based upon a record in which the identical question had been asked was before the Court, now asked again and before the Court is the identical question.
Felix Frankfurter: I don't have to tell an experienced lawyer like you that question sometimes reflect different significances as to the uses made of them.
Edward Mosk: I -- I would concede that of course, Your Honor, but what I'm saying is that when the question is asked following the history of this case in the whole context of the prioritization, it seems to me that the position adopted by Mr. Justice Traynor in the California Supreme Court that under the circumstances of the whole history of this case, it was at least incumbent upon the State to come forward with some type of evidence before they could then require that questions that are already been asked should now be asked again.
Felix Frankfurter: That -- but that judgment, that view of Mr. Justice Traynor for whom I have a greatest respect --
Edward Mosk: Was not adopted --
Felix Frankfurter: -- with reference to different legal question and no one will now represent it.
Edward Mosk: No, Your Honor, this --
Felix Frankfurter: He was deciding this according -- he didn't go on to constitutional ground, did he? He went on the ground in his capacity as a reviewing authority of what the Committee found. He could well find that on this situation, you should not have ruled against this applicant for admission at the very different question, then the question you are now arguing, to which you're now addressing yourself namely whether exclusion on the basis of refusal to answer, excluded the Committee from inquiring into a line of relevant considerations that might, on one -- on one basis, lead them to justify but rejected.
Edward Mosk: Yes, except that the essence of Mr. Justice Traynor's dissent even though the exact position where he was sitting at that moment was somewhat different than this Court. The essence of his argument was the fundamental unfairness which when translated into the terms of our position before this Court is simply that by handling the manner in which the matter, in the manner in which the State of California handled it, the State of California was denying petitioner due process.
Felix Frankfurter: Well, Mr. Justice Traynor is the last man in the world, not just knowing the difference between the grounds on which he went, in the ground on which his dissenting colleague man.
Edward Mosk: Why, I -- I would suspect that he was well aware. I see that my time is rapidly approaching an end and I do want to reserve with the Court's permission sometime to respond to points made by counsel. I -- I feel that one final point should be made and I would be remising not, at least recognizing the existence of the decisions of this Court in Beilan and Lerner. I'm well aware of the reliance which the State puts on these cases. And in view of shortness of time, I -- I want to summarize my feeling on these two cases. It seems to me that first of all, these two cases were situations in which there had been prior, as distinguished from the question that Mr. Justice Harlan asked earlier, not the decision in the case itself but there had been prior determinations of the courts of the States of Pennsylvania and New York that failure to answer questions under a particular situation would be interpreted by the Court as incompetence or lack of candor and so forth and there would be -- and therefore, would be proper grounds for dismissal. In this case, the first judicial determination, if there has been any at all, would be the very decision in this particular case. But I think more important even in that distinction and the one which I must, with all sincerity urge upon the Court, is that there is a fundamental difference between an employer-employee relationship as exist even in the case of a teacher where the whole question of academic freedom must be considered, but there was a fundamental difference between the employer and employee, the asking of a question by an employer and the obligation of the employee to respond to that question and the asking of a question of an applicant for admission to the independent practice of the law. This is not an employer, employee relationship. The very essence of the relationship is the very contrary of employer-employee relationship. The very essence of the relationship is the independence of the prospective lawyer. No other profession has the responsibility that the legal profession has to maintain its independence from the State. It is the lawyer who must take the position of representing the State in its relationship with the individual and by the same token, it is the lawyer who must stand between the State and the protection of the individual. And if we ever reach the point where we consider the relationship between the State and the lawyer, one of an employer-employee relationship, I submit that we will have lost some of the fundamental, the very fundamental nature of the independence in the profession of the law.
John M. Harlan II: Do you think that a lawyer has a less duty of candor to the admitting authorities or ultimately to the Court in an ordinary layman has to his employer?
Edward Mosk: No, I do not, Your Honor. I would be the last person in the world to talk to -- to try and detract in any manner from the strictest requirements for admission to the Bar. This is not our position at all. But what we have here as distinguished from the -- the kinds of questions which counsel will probably argue about such as asking age and -- and commission of crime. What we have here is an intrusion into the First Amendment area. And as soon as you that, you'll run into the whole problems which Court, of course, is thoroughly familiar with, of beliefs and the restrictions against future applicants for the Bar in handling themselves in the future so that they will not run up against the kind of problems that Konigsberg run into here. And I submit that the very theory of independence of the Bar requires that we take greater care of intrusions into the First Amendment area than in any other area of -- of life.
Felix Frankfurter: But the First Amendment isn't restricted to what might be called political view, social view, is it?
Edward Mosk: That's correct, Your Honor.
Felix Frankfurter: Could he be -- could he be asked a lot of questions as to the function and belief in the State organized bar that he'd be asked questions as to belief in contingencies but he ask -- he asks questions as to the requirement, constitutionality to determine as -- under the Ohio Constitution by all except one member of the Court? Could he be asked any of those questions?
Edward Mosk: I think that what you come to on those questions, Mr. Justice Frankfurter, is the weighing and the balance of the value of the questions and the value to society in restricting the asking of those questions.
Felix Frankfurter: What do you say to the kind of questions that are asked?
Edward Mosk: I would say these kinds of questions are -- are of no great moment unless, unless there was some issues that a person knew that if his views were contrary to the views of the Committee of Bar Examiners, they weren't going to allow any one to be admitted who had a view contrary, let say, to the principle of the integrated bar.
Felix Frankfurter: How did you know that? Could he be asked questions if he beliefs in an elective or against the party of judiciary? Could he asked -- asked questions about the tenure? Could he be asked -- could he even be asked questions as to what he thought about some -- on the merits of some recent decisions of the California Supreme Court?
Edward Mosk: I would have some question as to the propriety of it because I would submit that these are not matters upon which his answer either way would justify his being denied admission to the Bar. And I feel the same thing about the questions that had been asked here.
Felix Frankfurter: But it might disclose such -- such -- what shall I say (Inaudible) knowledge of the law that they might (Inaudible) a man who has -- who object to a decision on this ground rather than that really isn't such a practice. No matter what kind of questions, he answered them in the examination papers were result of a cram course on the basis of which so many bar examinations are being taken these days.
Edward Mosk: I would suspect the Supreme Court of California would not permit his denial on that basis. And I --I would say that the --
Felix Frankfurter: Well --
Edward Mosk: -- the questions had moved in to a realm --
Felix Frankfurter: Are you now suggesting that the California Supreme Court would deny an admission nearly because he was -- had been a member of the Communist Party of the years ago?
Edward Mosk: I do not believe so, no.
Felix Frankfurter: Well, then -- then they're on a par.
Edward Mosk: They're on a par, Your Honor, except insofar as weighing them in the balance of the importance to society that we not intrude into the area, then I think that the scales are quite different.
Felix Frankfurter: Do we have to guess here as to what is likely to give you effect of his answers in the eyes of the existing Supreme Court of California to vote as it is, is that it?
Edward Mosk: I'm not sure I thoroughly understand the question, I think not --
Felix Frankfurter: Well, you -- you indicated that -- that he wouldn't be denied admission by the California Supreme Court as he gave answers to some of the questions that I hypothesize. Therefore, we must seat here and decide what kind of a -- what -- what the attitude now (Inaudible) of the Supreme Court of California, of Utah, North Dakota and Massachusetts etcetera maybe.
Edward Mosk: I -- this is the very reason, Your Honor, why I hesitated to speculate because I think it is not really to the heart of this issue. But I do want to reserve some of my time and therefore, I'll --
Earl Warren: You may.
Edward Mosk: -- stop at this time.
Earl Warren: Mr. Belcher.
Frank B. Belcher: Mr. Chief Justice, may it please the Court. When this case was here before, all of the members of this Court with but one exception were, of course, thoroughly familiar with the record which was then presented. The record as it now (Inaudible) before this Court is, in many of its essential aspects, the same as the record then was.
Charles E. Whittaker: (Inaudible)
Frank B. Belcher: Yes, sir, I was just coming to those. With the exception that some three and one half years expired between the time when Mr. Konigsberg appeared before the Committee and made the record on which this case was here before and the time when he came before the Committee again and supplemented that record into the record which is now before this Court. At the time of the second hearing, Mr. Konigsberg again became a witness. Mr. Konigsberg introduced traditional letters as to his character. Mr. Konigsberg called and examined a witness who justified to what he deemed to be pertinent matters. So the record to that extent is now different. Also, at the time of his second appearance before the Committee and the making of the record now before this Court, Mr. Konigsberg was warned in terms which cannot be mistaken or misconstrued that any failure to answer the relevant and pertinent questions of the Committee before whom he was then appearing would be deemed grounds by that Committee to deny his certification to the Supreme Court as having good moral character and he's not advocating the overthrow of the Government. No question is raised here at this time as to the nature or the character of the warning which was given Mr. Konigsberg. After having had an opportunity of some three and a half years to think over the refusals which he had made before to answer the questions which were asked him, he declined again to answer a single one of those questions which he had previously declined to answer. And again, testing what had transpired during this period of three and a half years, the Committee asked him, "Are you now a member of the Communist Party?" and he refused to answer that. They asked him as to each particular year from 1951 down to 1957 on this hearing was had which now makes this record. And he refused to answer any of those. So his position the second time was essentially the same as it was before with added denials to similar questions and with the reaffirmation of his refusal to answer the questions which he had refused before. Now, I think it maybe somewhat helpful to this Court to know the type of questions which this man has persistently refused to answer. I'm not going to --
John M. Harlan II: Can I ask you a question? Is this record contained all of the supplemental questions other than the ones that were in the record in the last case?
Frank B. Belcher: Yes, sir.
John M. Harlan II: (Voice Overlap)
Frank B. Belcher: And the record, if by stipulation at the time of the last hearing, the first record was also made a part of his record so that the two records are now before the Court on this hearing. Now, the questions which Mr. Konigsberg did try to answer fall essentially into three categories. One of them, he declined to answer any question which was asked him with respect to his communistic membership, affiliations or associations. I'm not going into those because they were quoted almost in full in the dissenting opinion in this case by Mr. Harlan when this case was here before. I do, however, want to say this that I cannot accept the statement which Mr. Mosk paid here today to the effect that Mr. Konigsberg has answered with the upmost freedom any questions relating to his advocacy of the overthrow of the Government. Mr. Konigsberg said this. The Committee can only ask, “Do you now personally advocate the overthrow of the Government of the United States or of this State by force or violence or other unconstitutional means? And if I say, no, yes or whatever it may be, that is as far as you can go.” That is without raising a question on this point. And again, he was asked whether he was contending that the Committee was bound by his answer yes or no which he gave and he said that he was that the Committee was not entitled to even cross-examine him upon that score. Now, with the summary of event, these questions, which are in the other opinion before this Court, I passed to a second category. Mr. Konigsberg would not answer a question as to his association. And if I may be permitted, Mr. Justice Chief Justice, I want to read just a sentence out of an opinion of this Court and then read a sentence out of Mr. Konigsberg testimony in order that the two may just be laid side by side. In the Atler case, this Court said, "Once associate past and present as well as one's conduct may properly be considered in determining fitness and loyalty. From time immemorial, one's reputation has been determined impart by the company he keeps.” That declaration has then affirmed by this Court on a good many occasions. Quoting now from Mr. Konigsberg, "I respectfully say that you are not entitled to know my associations and any person may refuse to answer on the basis of the rights of a citizen under the First Amendment which I have briefly referred you with my testimony." So he declined to be examined as to who his associates were. Now, in the opinion of this Court before, reference was made to a series of editorials which this man had written. And they were ragged group of editorials. He criticized everybody from the sheriff of Los Angeles County down to the President or up to the President of the United Sates. He criticized members of Congress. He said that we were an imperialist nation, that we were waging of war of regression in Korea. He impugn the integrity of this Court, and as I say, just summing up on a whole labor of pretty ragged bunch of editorials. Now, let me make it clear as I did before, I don't question the man's right to write those editorials. But I do say that the character of those editorials made it imparity that the Committee before whom he was appearing at least asked him questions about -- about those editorials and that they deal. They asked him, for example, with respect to the editorial which he wrote impugning the integrity of this Court, "Do you have any evidence on which to base that editorial?" And his reply was, "These writings of mine are protected by the First Amendment. You have no right to interrogate me with respect to them. The freedom of the press protects me in writings of that kind whether my utterances are true or false." Now, that's almost an exact quotation of the statement which Mr. Konigsberg made. And I submit to you that that's queer doctrine for a man seeking admission into the Bar of the State of California. So I pass from there and so much for the record which we are here upon before this Court. The next question that rises is one, perhaps, involving the constitutionality of the questions which this Committee addressed to Mr. Konigsberg. We are very akin in the basic concept to this case to the (Inaudible) case which was just argued. We have certain matters in common with the Cohen case which will follow this. But I am going to dismiss the constitutional question very briefly for the reason that I submit that it has been answered by this Court in a number of decisions since we were here last on this case which now leaves no doubt as to the constitutionality and the propriety of the character of questions which were addressed to Mr. Konigsberg. The Court sets we were here before has decided the Beilan case, the (Inaudible) case, the Nelson case, the Barenblatt case and a number of others. And I think it may now be accepted without question as the rule of this Court that inquiry into the membership in Communist organization and allied questions of that kind and character are now permissible on constitutional grounds wherever fitness and loyalty are in issue. So I shall dismiss the constitutional question saying that we rely firmly upon those particular cases. I do, however, want to supplement that concept by one further statement. Our State Supreme Court has held that these questions which were addressed to Mr. Konigsberg were relevant and pertinent questions. And I adopt the suggestion. I advocate the suggestion which came from a member of this Court a few moments ago that that is purely a state question, not subject to review by this Court. Now, there are some contention made here that this Court closed the door upon us as to a further inquiry in to Mr. Konigsberg's situation before we admit it. It maybe somewhat presumptuous on my part to stand here and tell this Court what it decided before, but I think I can accept certain declarations which appear in the opinion. In the first place, this Court before declined in specific words to pass upon the constitutional questions, perhaps it's here again and if so, I'm willing to submit it on the authorities which I have cited. In its opinion before this Court declined to decide whether Mr. Konigsberg had a right to refuse to answer the questions which he refused to answer. In its opinion here before this Court held that when, as and if, that question was presented to the Court, that then you would undertake an answer to the problems which it -- which it then created. And with those declarations, the Court then remanded this case, not with directions to the Supreme Court of California to admit Mr. Konigsberg to the practice of law, but with directions to the State of California to take such other proceedings as it might be advised not inconsistent with this opinion. Mr. Konigsberg then became -- then came before the Supreme Court and moved that on the basis of the holding of this Court that there was -- that we had -- that California had previously impermissibly drawn inferences of not good moral character and not to adversity -- to overthrow of the Government, that upon the basis of those determinations that he'd be admitted. That Court as it was then constituted by vote of 6-to-1 declined that suggestion and referred the case again to the Board of Bar Examiners for further proceedings not inconsistent with abuse which have been expressed by this Court. Mr. Konigsberg went before the Board of Bar Examiners. He raised the same question. And that Committee, composed of distinguished lawyers of the California State Bar, refused his request in that respect unanimously. They declined, not this time on the basis of any inferences wrongfully drawn or impermissibly drawn, but solely upon the basis of his refusal to answer questions which completely thwarted the investigation of this Committee into the two questions of his moral character and whether he advocated the overthrow of the Government. Solely upon his refusal to answer those questions, the Board of Bar Governors declined to certify his -- him to the Supreme Court as being eligible for admission. And that Court then, by a vote of 5-to-1 held that this -- that the prior decision by this Court did not estop them from now again considering Mr. Konigsberg position in the light of his refusal to answer. And by that vote or by two dissenting votes, Mr. Traynor's opinion, however, holding specifically that the Court had a right to again consider that question, they declined to admit Mr. Konigsberg to practice. Now, that's the record as it now stands. There is but one other point which has been raised here in the absence of some questions from this Court upon which I shall comment briefly. There has been some intimation here that California invented a new ruling for the purpose of excluding Mr. Konigsberg that this was something made expressly for him that is not born out by the record of our State at all. There is a section of our brief devoted to that question. I shall not here repeat it. There is no written rule, just as there was no written rule in the Beilan case, that if you don't answer, you will be excluded. But in the case cited in our brief, our Supreme Court has held starting back over 30 years ago that the utmost candor and frankness is required on the part of any applicant for admission to the Court that they must answer pertinent inquiries from the Committee inquiring into their good moral character and so on. And on a number of occasions, five, I believe, in all the Supreme Court has declined to admit to practice law because of refusal to answer questions. And then at least two of those, certiorari was refused by this Court. So I say on the basis of the cases which are set out in our brief that it has long been the rule in California that admission to practice law will be and can be and is denied to one who refuses to answer pertinent questions. Unless there are some questions from this Court upon this record and that be now to -- that this case for your further consideration. Thank you.
Earl Warren: Mr. Mosk.
Edward Mosk: I shall also be quite brief, Your Honor. I think that there are probably a very few matters that Mr. Belcher has raised that has not been covered fairly thoroughly in our briefs. There are a couple of matters on which the record, I think, should be made clear and that will be the word of my argument at this point. First of all, on the last point made by Mr. Belcher, a point that there are previous cases dealing with refusal to answer questions in the State of California. I submit the cases do not bare that out. The cases cited by Mr. Belcher in the -- in his brief and to which we responded at least briefly in our closing brief are cases have been entirely different nature. These were cases involving persons who have falsified their statements to the Committee of Bar Examiners. These are state -- these are cases in which persons were found after they had filed their applications to have been disbarred in some other State or who have committed some crime in some other State, not a single one of those cases deals with the situation where there has been a principal refusal to answer a question based upon high moral principles. None of the cases are even related to the situation that we have here. And I would submit that the citing of those cases as authority for the position by the State here is an indication of their lack of comprehension of the nature of the problem that we have before the Court that is a principal of declination based upon the entire First Amendment situation. Now, I would point out only one other matter and that is the beginning of Mr. Belcher's argument in which he read quotations from the record. And I would point out to the Court that as far as I can tell, each of the quotations that are read to the Court at this time were read from the first hearings, were read from the record of this case prior to the time that this matter was already determined by the Court. The type of statement and the nature of the declination which was read to you were the declination prior to the 1957. And I submit that we have set forth in detail the approach that Mr. Konigsberg took on the return and it is quite different, not in principle, but different in approach because most of us learn something about how to approach a Committee over a number of years. And I think that if you will read the record, and as I'm sure all of you have, of the -- the more recent hearings, you'll find that there's an entirely different approach. And particularly on page 13 -- 12 and 13 of petitioner's opening brief, you will find the quotations from Mr. Konigsberg in which he -- not only did he say that he would answer further questions relating to advocacy, but he begged the Committee to ask any questions relating to specific acts of wrongdoing. He was no longer saying that you could not cross-examine. And I would concede that prior to 1957, perhaps, there was that element in the earlier record. I don't think it was intended in a manner that was indicated by Mr. Belcher's reading of it but there, perhaps, was that element.
Charles E. Whittaker: Well, now --
Edward Mosk: But --
Charles E. Whittaker: -- on cross-examination, did he not throw up the barrier and say, "I'll select the questions I'll answer?"
Edward Mosk: Mr. Justice Whitaker, there could have been that implication in the -- prior to the 1957 record. That implication cannot be found in the present record before this Court.
Charles E. Whittaker: Do you contend that -- that this man would take the stand testifying that "I am of good moral character," then when asked on cross, "Are you a member of the Communist Party?" he could refuse to answer?
Edward Mosk: That is my position, Your Honor. I would submit that on this record and the history of this case that that is the position that is a perfectly proper one. He took the position and he said to the Committee, "The Supreme Court has already indicated by a previous decision that my position is certainly not a foolish position, that it is a principal position. Now, you cannot ask me", he said to the Committee, "to change this principal position at this late day and in the light of the decision of this Court." He said, however, "If you will ask me any questions about any kind of specific wrongdoing, any questions indicating that I have ever anywhere advocated the overthrow of the Government by force or violence or any other act of impropriety on my part, I will respond directly to that." And only in this limited area did he say that "I will not respond to the questions," but he did not foreclosed cross-examination at all. It was just that the Committee had no facts upon which to go. The Committee had no basis for proceeding further. They have no information. Their investigation had shown nothing. Therefore, the Committee did not proceed further with any type of cross-examination. So that, if you will read the -- the record and particularly the statements on pages 11 through 13 of our brief, I think you will find that there has been no cutting off of questioning as would seem to have been indicated by Mr. Belcher's statements.
Potter Stewart: Mr. Mosk --
Edward Mosk: And so we submit to the Court --
Potter Stewart: Mr. Mosk --
Edward Mosk: -- this time.
Potter Stewart: -- excuse me, before you proceed.
Edward Mosk: I'm sorry, yes, sir.
Potter Stewart: Considerably earlier in your argument, Mr. Justice Harlan asked you whether or not we weren't here bound by the holding of the Supreme Court of California that the reason for withholding this man's certification was his refusal to answer material questions. And I -- you know that you don't have answered that but if you did I'm -- I missed it.
Edward Mosk: I -- I, perhaps, did not answer it directly. I -- I suppose I did inferentially. Mr. Justice Stewart, our -- our position is -- is simply this that just as the first time that this case was before the Court, the Supreme Court of California had by refusing to refute the decision of the -- of the Committee of Bar Examiners and thereby barred to Konigsberg from admission to the Bar had, in effect, made a declaration of the position of the State of California on that matter and in effect, had approved the decision. Now, when this matter goes back a second time, we have a -- a decision of the Supreme of California which states a reason and it gives the language of a state -- a state ground. But I submit that what we must do in this case is examine the entire context of the case to determine whether when seen in the entire context of what has happened in the Konigsberg case, whether or not there has not been an arbitrary and capricious determination on the part of the -- of the Supreme Court of California which violates due process of law. The fact that they -- this Court has frequently said but the fact that a State places that on what appears on the surface to have been a state ground does not mean that it may not be reviewed to determine whether or not, in the entire picture and the entire context of it, there has not been a violation of due process.
Felix Frankfurter: Well (Inaudible) to give an extreme case, suppose the State said we -- whether on the ground that he refused to answer questions and the total -- no question about the record being a full record, and I'm reading it, one finds that he did not refuse to answer any question. I suppose that -- that'd be little doubt that -- that what the State says was a state ground, isn't a state ground in that case.
Edward Mosk: I could not disagree with Your Honor on that.
Felix Frankfurter: So that -- so that we have a clear case. But if as a matter of fact, there were refusals to answer questions and the State said, "Because he refused to answer those questions which we think were proper questions to the Court, could we then reject that ground? We might -- we might bring into question or counsel, they'll bring into question the -- the constitutional validity of refusing to answer?"
Edward Mosk: Well --
Felix Frankfurter: But that the State would -- court went on that ground, hardly a subject to controversy.
Edward Mosk: My red light is here but I will like to --
Earl Warren: Go ahead, answer.
Edward Mosk: -- respond to the question. What we must do in examining any situation, it seems to me, is determine whether in the entire context of all that's happened, what the State has done is what it says it is doing. Now, I would submit that under the circumstances of this case, while the State has selected, perhaps, from this Court's decision a small clause and then has attempted to go through that door to a decision, what they are doing, in effect, is endeavoring to destroy the effect of an earlier decision of this Court which made certain finding relating --
Felix Frankfurter: You can't do that, but if a door no matter how small is a sufficient aptitude to which a person can pass then the State can select that small door, can't it?
Edward Mosk: Perhaps for some other case but not --
Felix Frankfurter: But with this case, if --
Edward Mosk: -- not --
Felix Frankfurter: -- if -- if that door wasn't vaulted by this Court, I understand you ought to say it was. That's a different question and therefore, there was a disobedience of the mandate of this Court, I understand that. But if we go beyond that and say it wasn't vaulted, if there is a rule no matter how small it is, how small or narrow a door, which was not voted by this Court, then the state court can go through it.
Edward Mosk: I -- I cannot --
Felix Frankfurter: In other words, it -- it can't -- the generality is it can't evade the protection of a constitutional right which this Court sets to protect, by pretending by an evasive use of state law but you got to get ultimately to that position.
Edward Mosk: I -- I -- of course, I could not quarrel with that, Your Honor. Thank you, Your Honor.