Baird v. State Bar of Arizona

PETITIONER:Sara Baird
RESPONDENT:State Bar of Arizona
LOCATION: State Bar of Arizona Office

DOCKET NO.: 15
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: Arizona Supreme Court

CITATION: 401 US 1 (1971)
ARGUED: Dec 08, 1969 / Dec 09, 1969
REARGUED: Oct 14, 1970
DECIDED: Feb 23, 1971
GRANTED: Apr 07, 1969

ADVOCATES:
Mark Wilmer – for the respondent
Peter D. Baird – for the petitioner

Facts of the case

Sara Baird graduated from law school at Stanford University in 1967 and passed the bar examination in Arizona. Among the questions asked by the Arizona Bar Committee, she answered Question 25, which requested that she list all of the organizations to which she has belonged since the age of 16. She declined to answer Question 27, which asked whether she “had ever been a member of the Communist party or any organization ‘that advocates overthrow of the United States Government by force or violence.’” Because she did not answer that question, the Committee did not process her application any further. The Arizona Supreme Court denied Baird’s petition for the Bar Committee to show cause why she should be denied admittance to the State Bar of Arizona.

Question

Does the First Amendment protect against state inquiries into personal beliefs for the purpose of excluding a person from a profession?

Warren E. Burger:

Number 53, Baird against Arizona.

Mr. Baird.

Peter D. Baird:

Mr. Chief Justice may it please the Court.

My name is Peter Baird and I represent petitioner and this cause.

The case before you is on writ of certiorari to the Arizona Supreme Court and it concerns a refusal to admit petitioner to the practice of law in Arizona.

She has graduated from Stanford Law School, she has passed the bar examination and the refusal stands upon her refusal to completely fill out a questionnaire and affidavit prescribed by the Arizona rules of the Supreme Court of Arizona.

There are two particular questions that are involved in this case.

First is the question she did answer and this was question 25 and we set it for on page three of our brief.

This is and I quote, “List all organizations, associations and clubs other than bar associations of which you are or have been a member since attaining the age of 16 years.”

This petitioner did, she listed each and every organization to which she has belonged.

The next question —

Potter Stewart:

Mr. Baird, I saw that in the brief and then I looked in the appendix and I found that the form in the questionnaire was there but I didn’t see the answers that she gave to that question or did any other question.

Peter D. Baird:

Mr. Justice Stewart, we do not have as part of the record the answers to the questions.

That is part of the committees’ files and they were not introduced so far as I know before at the Supreme Court.

Potter Stewart:

And how do we not then know so far as the record goes that she did fully answer question 25?

Peter D. Baird:

We alleged that in our verified petition before the Arizona Supreme Court and so far as I know this was not denied and the refusal to admit petitioner is expressly based by the committee upon her refusal to answer question 27, not question 25.

Question 27 reads as follows —

Potter Stewart:

I just think it just appears to me and maybe I’m quite wrong and in the course of your argument, maybe you’ll persuade me so, but that the validity of the refusal to answer question 27 might depend upon what answer was given to question 25 and we don’t know what answer was given to question 25.

Peter D. Baird:

That is true, as part of the record you do not know the names of the organizations to which she has belong which she did list.

Potter Stewart:

Well, I don’t want to throw you off here.

Peter D. Baird:

Her question, question 27 reads “Are you now or have you ever been a member of the communist party or any organization that advocates, overthrow of the Untied States Government by force or violence.”

There is —

Warren E. Burger:

Would you say that’s one question or more than one question?

Peter D. Baird:

I would say Mr. Chief Justice that really is two questions, one which overlaps with the first question which she answered.

In other words the reference to communist party would show up in the question which she did answer.

If she had belonged to the communist party, it would have showed up in response to question 25 and there is no contention I might add parenthetically that any of those really is a communist party.

So the essence of her refusal goes to the requirement that she characterized.

The group she belonged to and listed in response to 25 as to whether they do advocate the overthrow of the government.

Warren E. Burger:

Your brief as I followed your arguments in the brief places a great deal of emphasizes on the invasion of the petitioners right of free political association but may I ask you this question?

Do you include the second half of that question that is the question addressed to whether there is membership in any organization advocating the overthrow by force of the government as an invasion of politically, constitutionally protected right to political association?

Peter D. Baird:

Yes, we do Mr. Chief Justice.

Warren E. Burger:

Then that means you contend that there is a constitutional right, guaranteed and protected right to overthrow the government by force and violence?

Peter D. Baird:

That is not correct Mr. Chief Justice.

Warren E. Burger:

Does that follow?

Peter D. Baird:

No, I do not believe it do, I think that —

Warren E. Burger:

Well, I hope sometime while you’re on your feet you’ll explain that to me.

Peter D. Baird:

I will — I shall do it right now as a matter of fact.

The question as to forcing her to characterize whether any of the groups that she has belonged to is advocates the overthrow of the government of the United States by force and violence requires her to state whether under the Smith Act as I understand it.

Any of them actually does advocate the overthrow of the government.

Now, the burden upon the petitioner is significant in that respect.

It requires her to make various value judgments under the Smith Act and therefore would make her less likely to join these organizations.

As to whether membership per se, in this kind of an organization is unprotected conduct, I think that under the decisions in Elf Brown and perhaps in Robel that one must actually have a specific content to overthrow the government.

Be an active member, know that the organization advocates the overthrow of the government and share that purpose before that association or status maybe proscribed.

The most significant aspect of question 27 apart from the freedom of association aspect is the purpose for which question 27 is asked and this is extremely important in the freedom of association area where the burden in not upon the applicant to state why she shouldn’t have to answer it.

The burden is shifted to the state to come forth with a compelling state interest to say why she should answer it.

The compelling state interest which the state has come forward with in this case and presented to the Arizona Supreme Court is and I quote as follows.

“Unless we are to conclude that one who truly and sincerely believes in the overthrow of the United States Government by force and violence is also qualified to practice laws in our Arizona Courts that an answer to this question is indeed appropriate.”

The committee again emphasizes that a mere answer of yes would not lead to an automatic rejection of an application.

It would lead to an investigation and interrogation as to whether the applicant presently entertains the view that the violent overthrow of the government is something to be sought to be sought after.

If the answer to this inquiry was yes then indeed we would reject the application and recommend against submission.

Warren E. Burger:

Don’t you think that this question would be a similarly inappropriate to ask a candidate, an applicant for a job as a police officer?

Peter D. Baird:

If the purpose was to seek not the conduct of the police officer but rather his political beliefs and views, I would say that it would be inappropriate.

This Court has almost an unbroken chain of precedence saying that belief is absolute Mr. Chief Justice, and I would submit that in any situations except those involving absolute discretion would be a point to uphold the public service.

The beliefs or brainwaves of an individual are not the concerned or the business of the state.

It seems to us that the case really is controlled by Speiser versus Randall.

In that case where a tax exemption was depended upon the execution of an affidavit stating that the applicant did not advocate the overthrow of the government, this Court inferred in holding that that denial of the tax exemption was unconstitutional.

That there was a frank aim at suppressing dangerous ideas and therefore it was unconstitutional.

We say that our case is even stronger, the right to practice law which has been described by this Court as far back as 1867 as a right is much more precious than a tax exemption.

In our case we need not infer an assault upon political belief, it is frankly out in front of us by the expressed statement and very candid mission of the committee.

The affect upon holding that belief is a valid subject of inquiry for the state bar or for any other government institution seems to be involved in a tremendous amount of deterrence, of thought control.

Peter D. Baird:

Of perjury problems if the person is under oath as to how do you known whether an individual is telling the truth with respect to matters of the mind, I guess one of our basic points in this area was made in 1867 in ex parte Garland where a former confederate member of the confederate core sought to be a lawyer and was barred because he could not take the oath of office required of him.

This Court and holding that to be a Bill of Attainder said that the right to practice law can only be deprived of by misconduct consisting of moral or professional delinquency.

This point was also referred in Schware v. Board of Bar Examiners where it was noticed that it would be important that the petitioner there actually participated in some unlawful conduct.

We believe that disbarment in the criminal law sanctions are sufficient to present any sort of threat which is posed by ones mind.

In function, this question 27 is really a test oath because it is not a conduct.

It is not asked for the purpose of finding out whether an individual engaged in unlawful conduct.

It is asked for the expressed purpose of finding out whether one has an intent which is to overthrow the government of the United States.

Potter Stewart:

And I understand it Mr. Baird that it’s your submission that it’s no business at all of the government, either in hiring employees or in qualifying applicants for to follow various professions that it’s absolutely no business of government to ask any questions of any kind to such applicants as to those applicants beliefs.

Peter D. Baird:

As to political beliefs and religious beliefs in particular Mr. Justice Stewart.

Potter Stewart:

Well now its — your narrowing it a bit now.

Peter D. Baird:

Well now I can see that you might say that a bar examination is to test ones thought processes of some sort because it goes to competency.

I don’t believe that —

Potter Stewart:

Well apart from merely technical professional in competency, let’s take the police officer and let’s say he’s of the requisite weight and height and these educational qualifications.

But then they — he comes to their attention, he believes in that all Negroes are inferior, that their all criminals and that there should be absolute segregation in the races — between the races in the city in which he’s applying at as a police officer, either a chance relevant at all, to his ability to act as a police officer representing the public?

Peter D. Baird:

I think it may be relevant Mr. Justice Stewart but I don’t believe that relevancy in this situation can be the subject for can be the substitute for a constitutional ban which I understand under the holdings of this Court.

If belief is absolute as we said in Cantwell v. Connecticut.

If use of the individual are in violent, then I submit that it cannot be in violate in some instances or absolute in other instances.

Take the situation of a lawyer where he believes very strongly in opposing the equal protection clause of the United States Constitution.

He opposes Brown versus Board of Education.

He has a state of mind which is inconsistent with the following of the mandates of this Court and of the constitution.

One could say that is relevant because it maybe transposed into conduct which would obstruct equality and —

Potter Stewart:

But it has to do with his belief as to what the Equal Protection Clause of the 14th Amendment means.

Well let’s assume that he is very strongly of the belief that the way to solve human problems, controversies between human beings or between that individual in the state is not by law but is by throwing bombs.

Now do you think he ought to be admitted to be a lawyer in the state?

Peter D. Baird:

In so far as —

Potter Stewart:

If all his beliefs are that the law is absolutely a useless mechanism to solve any problems and that the way to do it is by assassination and bombs and machine guns.

Peter D. Baird:

In so far as that is a thought process and does not approach action, then I say that, “Yes, that is protected just the same as a belief of declaring or fighting wars without congressional declaration.”

I think there are sort of thought which are inconsistent which if transposed into conduct post enormous threats to the security of the United States but the converse, the choice is opening a wedge into a freedom of a mans mind.

Potter Stewart:

But were not here talking about whether or not such a belief might be protected in the abstract which I suppose that everybody would agree to.

But the question is about whether such a person is the kind of a person who would have the proper ingredients to be a lawyer.

Potter Stewart:

On account of state which does setup standards for to admission to his bar.

Relevantly, make such an inquiry.

Peter D. Baird:

Not into his mind, into his background, his conduct, his character but not into his mind Mr. Justice Stewart because you could ask that kind of question in any sort of a context.

With respect to any kind of belief which means some bar committee must have a valued judgment in mind as to what is good belief and what is bad belief and as I understand the Flag Salute case in West Virginia v. Barnette this Court said that no official hire pity has the right to prescribe what is orthodox in politics, religion or matters of the conscience and a mans mind really is a very –very highly protected right.

In the abstract or in the concrete either way and it is our contention that this kind of a question which is aimed at belief can be sharply contrasted from the oath which the petitioner is seeking to take.

The oath of office which is sanctioned in Arizona by the rules of this Court and by the constitution to support the laws of the United States and she is willing to do this and that is an oath that is not broken by thought, it is an oath which is broken by conduct for unlawful conduct.

Byron R. White:

Well, I take it if you go on and say not only may they not pry into the mind but that the petitioner may — is constitutionally entitled not only to believe without being barred from admission of the bar, but also to join an organization with others who have similar beliefs.

In the first place and secondly to join an organization of others who have not only similar beliefs but who actively the organization as an entity, actively pursues the overthrow of the government by force and violence.

The petitioners constitutionally entitled to join that organization, still be a member of the bar until the message is proved that by conduct he joins the activity of the organization.

He joins in the activity of the organization.

Peter D. Baird:

Mr. Justice White I first of all say that isn’t the case here but I do wish to meet your point which is when you move from the area of belief.

The continuum into conduct and the closer you come to conduct the more likely I am to say that the bar committee has every right to examine that conduct and make it’s determination as to whether it indicates moral turpitude or bad moral character.

I would say that if an individual belongs to the communist party or some very unpopular organization such as that or take it on the right side of the spectrum of the minute man or whatever.

But that person, until he actually violates the law by his conduct, I do not believe that he should be denied the right to practice law.

Byron R. White:

Well let’s assume that there is some point in which his affiliation with the organization would disqualify.

May the state as a preliminary matter ask him if he’s a member of the organization?

Peter D. Baird:

In our case, I say yes. We have answered every organization to which the petitioner —

Byron R. White:

You would say that the state may say to a person “Are you a member of the communist party”?

Peter D. Baird:

Yes, on the basis of —

Byron R. White:

And then disqualify him if he refuses to answer?

Peter D. Baird:

Well that brings — well I think that probably is closer to the facts of the case which will follow us than ours but I would say that as in so far as Konigsberg and Anastaplo state the law that the petitioner in this case as she did must answer a question asking for the name of an organization.

She —

Byron R. White:

A specific question whether they can disqualify her if she is a member, I understand that.

And you think it’s a different question too?

Peter D. Baird:

You mean if she’s already a lawyer?

Byron R. White:

No, if she answers yes it’s a different question as to what she can be disqualified from practice.

Peter D. Baird:

If I follow you right, yes.

Hugo L. Black:

Where is her answer to 25?

Peter D. Baird:

Where is her answer?

Hugo L. Black:

Is it in the record in around?

Peter D. Baird:

I do not believe it is Mr. Justice Black.

I don’t think that the committee entered that into evidence before the Arizona Supreme Court so it’s not —

Hugo L. Black:

You mean they didn’t put in her answer to question 25?

Peter D. Baird:

I do not think so; I do not recall that that is actually part of the record.

All I know is that we alleged that she fully and fairly answered the question and that there is no —

Did they say she answered 25?

Yes.

Hugo L. Black:

Has she been accused of not answering 25?

Peter D. Baird:

No, she has not been accused of not answering question 25.

Hugo L. Black:

And they asked her all the organization she belonged to since she was 16?

Peter D. Baird:

Since she’s 16, under Konigsberg —

Hugo L. Black:

We have to take it as though that answered and answered truthfully?

Peter D. Baird:

Yes, I think so.

We alleged in our verified petition to the Arizona Supreme Court that this question was answered fully and truthfully and this was not really denied at all.

It has been, and as a matter of fact the committee has stated in its position before the Arizona Supreme Court that the only reason that they are keeping the petitioner from practice law is her refusal to answer question 27 thus clearly —

Hugo L. Black:

But why doesn’t 25 cover it?

Peter D. Baird:

Well because question 27 asks —

Hugo L. Black:

Unless they’re trying to get her to swear that the communist party believes in overthrowing the government by force.

Peter D. Baird:

I think the purpose for the question is that — well the answer is that she had answered question 25, so in far that as they would need that information to find references to investigate petitioners background and conduct, they can get it because they have all of the groups to which she belonged.

They can use that —

Hugo L. Black:

How many are there?

Peter D. Baird:

Pardon me?

Hugo L. Black:

How many were there, do you know?

Peter D. Baird:

I can’t remember, but in so far that is a valid purpose they can use the answer to question 25 and find these references.

Hugo L. Black:

You’d give a hundred women’s associations and clubs?

Peter D. Baird:

I think the girl scouts was one of them, was on that list.

In so far there’s a valid purpose, it could be served by her answer to question 25 because she was probably required under Konigsberg and Anastaplo to answer a question asking for membership because there is a possible valid purpose but to ask question 27 having already answered question 25.

They needed now to investigate ones beliefs and it is our position here that beliefs are not a legitimate subject for inquiry.

Warren E. Burger:

But are you suggesting that on the record as it now stands before us, this case is in the same posture as it would be if she had answered 27 by saying “I have already answered this question and answer 25”?

Peter D. Baird:

No, it really isn’t Mr. Chief Justice —

Warren E. Burger:

So it is a different question?

Peter D. Baird:

It is a different question because question 27 asks —

Hugo L. Black:

But it’s not a different question about her belonging to associations, is it?

Peter D. Baird:

Well yes and so far it’s a communist party is —

Hugo L. Black:

This one, one asked all associations and just picked one out in particular.

Peter D. Baird:

As well as asking whether in affect are any of those organizations you listed in response to question 25.

Is anyone of them — does anyone of them advocate the overthrow of the government by force and violence?

This does bring —

Byron R. White:

As I understand that do you find belief that that is an inquiry of belief I gather only from the response of the committee itself.

You don’t find that facing that –?

Peter D. Baird:

That is correct; it has been supplemented by the committee, apparently coming forward as it must on your NACCP versus Alabama to come forward with a compelling state interest to move in to the area of freedom of —

Byron R. White:

What do you think the state now argues in this Court as to what the reason for the question?

Peter D. Baird:

I think that the reading of brief of the respondent that the text of their answer has changed somewhat.

Byron R. White:

So whom should we believe, the bar committee or their bar committee’s views as expressed in the court below or the bar committee’s views as it’s expressed here now?

Peter D. Baird:

I think you should probably ask them but I submit that it should be —

Byron R. White:

But would accept whatever answer they give?

Peter D. Baird:

No, I would not.

I think that it should be the committee’s answer which was presented to the Arizona Supreme Court which ruled on the basis of that memorandum of points and authorities thereby presumably adopting the position of the committee because I had no opinion.

Byron R. White:

Well what if the judgment is sustainable on another ground?

Peter D. Baird:

You mean that you would just ignore the political belief point and move into some other substantive —

Byron R. White:

What would the state now asserts, what sustained the matter —

Peter D. Baird:

I think that as I understand —

Byron R. White:

— offer for it?

Peter D. Baird:

I understand the appellate procedure it is the general rule that you must present the issues to the lower court as a normal matter before they can be presented here.

However this is certainly under the digression of this Court to waive, I’m sure.

Byron R. White:

But this is the — they’re all First Amendment claims aren’t they?

Peter D. Baird:

Our claims are First Amendment as well as Fifth Amendment.

Byron R. White:

Yes, well if the First Amendment claim was presented in the lower court and if the judgment of the lower court on the First Amendment claim is sustainable on another First Amendment ground, is that improper appellate practice?

Peter D. Baird:

I — I would say that in so far as this case is concerned, yes because before the Arizona Supreme Court, the attack was clearly on political belief.

William J. Brennan, Jr.:

But what about this Mr. Baird, I noticed Mr. Wilmer’s brief in page three.

William J. Brennan, Jr.:

He says “This committee has made it abundantly clear that regardless of the political beliefs and views of Sara Baird.

It is only if she is found to be actively believed to the notion of the spouse an act of this rule in implementing the notion that our government be destroyed by course of violence that a favorable recommendation will be reputed by the committee.”

I gather the argument is that they ask the question only to illicit the answer to something like this and if she doesn’t answer that she actively believes in or a spouse as an activist role, but then she be admitted to bar, is that right?

Peter D. Baird:

Apparently but that statement is a far cry from the statement that the —

William J. Brennan, Jr.:

Well, it certainly is far cry from what they said before, am I right?

Peter D. Baird:

— committee stated before the Arizona Supreme Court.

It said that it would lead to an investigation as to whether or not the applicant presently entertains the view and if so then they would reject the application.

William J. Brennan, Jr.:

Now we are opposed or are you with deciding this on the basis of memorandum or deciding this on the basis of the argument of the brief, which?

Peter D. Baird:

I submit that it should be decided on the basis of the issue as was presented to the Arizona Supreme Court for their decision.

William J. Brennan, Jr.:

I expect you would, but well, let me ask this, do you suppose the committee if indeed the question were directed to what the board is now said that the directives that constitutionally bears and it has any other claims?

Peter D. Baird:

Yes, I do.

I read the committee’s statement as still encompassing belief because it says actively believe I still say that that refers to her beliefs as I suppose to and spouses that at the greatest extent would involve speech and that does not come close to the Brandenburg decision this Court annunciated just last term where it said that “You must espouse directed toward action and is likely to produce action of an imminent violent sort or something to that nature”, which is really again a far cry from this statement by the committee.

Potter Stewart:

But Mr. Brandenburg wasn’t an applicant to the bar of Arizona.

Peter D. Baird:

That is absolutely correct; there is no question about that.

Potter Stewart:

What’s the posture of this case procedurally?

I’m thinking I’ve had in mind concerned about the finality, in other words if this question 27 where it answered no.

I suppose that would be the end of the case?

Peter D. Baird:

I assume so, yes.

Potter Stewart:

And since it hasn’t yet been answered at all is it a final judgment over which we can take jurisdiction?

Peter D. Baird:

I think so, in Konigsberg and Anastopalo, they did not answer the question with respect to their associations and it seemed to be final and Schneider versus Smith where the merchant marine applicant was involved.

He refused to answer questions at that time, if he had answered them I suppose that could’ve disposed of the case.

Potter Stewart:

For sometimes I don’t have in mind the precise posture of those cases but sometimes it could resolve in contempt and what not. But that hasn’t happened —

Peter D. Baird:

No.

Potter Stewart:

— here, it’s just pending.

It is just pending, if the answer is no to that question then that’s the end of it I suppose, she’s admitted to the bar is that it?

Peter D. Baird:

I suppose so.

Potter Stewart:

And if the answer is yes then there maybe more proceedings and they might not be admitted to the bar?

Peter D. Baird:

Yes, that is true.

Potter Stewart:

Now why is it anything final over which we have jurisdiction at this juncture?

Peter D. Baird:

Well because I don’t believe that the committee can require and answer to an unconstitutional question which is posed to seek out political belief, to —

Byron R. White:

That is what the question asked.

That is what the questioned ask, your just relying on the statement as to what they would do if she answered the question or the reason for the question.

Peter D. Baird:

The question requires her to make a judgment and the burden presumably is upon her to see whether they advocate the overthrow of the government by force and violence.

This requires her to deal and grapple with the issues of the Smith Act and that kind of a burden was specifically condemned in Speiser v. Randall where it said that the burden in this area should not be applied on the person who seeks a tax exemption.

William J. Brennan, Jr.:

Is this a First Amendment argument?

Peter D. Baird:

This is — yes it is because it would make one very much less likely to join an organization if he has to always make judgments as to whether that organization advocates, and if he misses in his judgment as to whether that organization advocates, He could be prosecuted for perjury, I probably wouldn’t stand up but he could be prosecuted, this is under oath.

John M. Harlan II:

Well am I wrong in thinking that Mrs. Baird will not be admitted to the bar if the record shows that you will not be admitted to the bar unless she answers the question?

Peter D. Baird:

If she answers the question —

John M. Harlan II:

Unless she answers the questions.

Peter D. Baird:

Unless she answers the question she will not be admitted to the bar.

John M. Harlan II:

Didn’t the record show that?

Peter D. Baird:

Yes, it does.

John M. Harlan II:

Well I would suppose there’s plenty of finality on that?

Peter D. Baird:

Yes, I think that there probably would be.

The very last point is our Fifth Amendment argument and this is simply to the effect that if an answer is required and if the answer were yes it would be an incriminating circumstance and a link in the chain.

If Spivack versus Klein is to be applied to the bar admission area as oppose to the disbarment area.

That seems to us that logically petitioner would be able to be a member of the bar of Arizona solely and entirely upon the Fifth Amendment.

We respectfully request that the decision of the court below be reversed.