In re Griffiths

PETITIONER:Fre Le Poole Griffiths
RESPONDENT:State Bar Examining Committee of Connecticut
LOCATION:Connecticut Bar Association

DOCKET NO.: 71-1336
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Connecticut Supreme Court

CITATION: 413 US 717 (1973)
ARGUED: Jan 09, 1973
DECIDED: Jun 25, 1973
GRANTED: Jun 07, 1972

ADVOCATES:
George Tiernan – for the appellee
R. David Broiles – for the appellant

Facts of the case

Fre Le Poole Griffiths, a citizen of the Netherlands, came to the United States in 1965 as a visitor. In 1967, she married a U.S. citizen and became a resident of Connecticut. She then attended Yale Law School and applied to take the Connecticut Bar in 1970. Despite the County Bar Association finding her qualified in every aspect, she was denied the chance to sit for the exam due to the fact that she was not a U.S. citizen, which Rule 8(1) of the Connecticut Practice Book of 1963 required. Griffiths requested judicial relief and argued that the rule was unconstitutional because it violated the Equal Protection Clause of the Fourteenth Amendment. The Superior Court of Connecticut denied her request for judicial relief and the Supreme Court of Connecticut affirmed.

Question

Does the Connecticut Bar’s requirement that applicants be US citizens violate the Equal Protection Clause of the Fourteenth Amendment?

Warren E. Burger:

This morning, the number 71-1336 in matter of the application of Griffiths for admission to the Bar.

Mr. Broiles, you may proceed whenever you’re ready.

R. David Broiles:

Mr. Chief Justice, may it please the Court.

Fre Le Poole Griffiths was born in the Netherlands in 1940.

Immigrated to this country on a temporary visa in 1965.

Obtained the status of a permanent resident alien after she acquired work in this country in the State of New York in 1965.

She continued to work in this country and was married in 1967, and moved to Washington, D.C.

After residing in Washington, D.C. approximately two years, she moved to New Haven, Connecticut where she was admitted to Yale Law School as a second year law student.

She completed her studies for an LLB degree at Yale Law School and graduated from Yale Law School in June of 1969.

She has the equivalent of a BA in Law from the University of Leiden in the Netherlands, and LLB in Law from the University of Amsterdam in the Netherlands, and an LLB in Law from Yale University in New Haven, Connecticut.

She is concededly, in all respects, qualified for admission to the Bar examination in the State of Connecticut.

But for the fact that Rule 8 (1) of the Superior Court rules of the State of Connecticut requires that all applicants for admission to the Bar examination, be citizens of the United States.

Fre Griffiths is not a citizen of United States and did not at the time for application intend to become a citizen of the United States.

She was at the time of her application, a resident within the residency requirements of the State of Connecticut for admission to the Bar.

Potter Stewart:

Does the record indicate that why she doesn’t want to — why she does not intend to become citizen of the United States?

R. David Broiles:

This was the fourth hearing that we’ve attended and you’re the first person to ask.

The record does not so indicate why she does not intend to become a citizen of the United States.

If you like for me to give you the reason, I would —

Potter Stewart:

Well, does the record show whether or not she intends to remain in the United States and particularly in Connecticut?

R. David Broiles:

The record does not show whether she intends to remain in the United States or in the State of Connecticut.

She was not asked that question.

She in fact, does intend to reside in the United States as with her husband.

Potter Stewart:

Indefinitely?

R. David Broiles:

Yes and she does intend to reside in the United States indefinitely.

Potter Stewart:

And clearly intends not to become a citizen?

R. David Broiles:

She does not at this time intend to become a citizen.

Her feeling is that after 25 years of living in Holland that she cannot give that up at this particular time.

Dual citizenship is not a possibility.

It would be as if we immigrated to Holland, say we married a Dutch citizen and I was living in Holland and my wife was working there, and in order to practice my profession as a lawyer, I was required to give up my citizenship in the United States.

My failure to do that and I would not give up my citizenship in the United States to be a Dutch citizen would not be because of any lack of loyalty to Holland, where I’m resident thereof or because I intended to violate any laws of Holland or because I could not abide by the constitutional laws of Holland.

R. David Broiles:

It will be because of the feeling that I have after having my family and resided in the United States for 25 years.

That sort of personal feeling is what Mrs. Griffiths has and she doesn’t feel (Voice Overlap).

Potter Stewart:

Just to have a personal feeling or one never knows about the future, about the relationships for example between our country and Holland, or any other nation.

R. David Broiles:

No there are contingencies (Voice Overlap)

Potter Stewart:

And as long as that personal feeling of loyalty exists to the nation of which you’re now a citizen, that’s I suppose what Connecticut was trying to get at, isn’t it?

R. David Broiles:

I think it is not what Connecticut is trying to get at.

Connecticut — people have personal feelings, for example, with regards to their citizenship in the State in the United States, by the virtue of the Fourteenth Amendment, we have a dual citizenship to a State and to the United States if we are a citizens (Voice Overlap).

Potter Stewart:

But in international affairs under our Constitution and all those matters, you’ll turn over to the National Government.

States don’t have foreign policies with other nations.

That’s one of the reasons our Constitution was adopted.

R. David Broiles:

That’s correct.

Potter Stewart:

So that’s not (Voice Overlap).

R. David Broiles:

Well, to contingency — if you’re asking, is there a contingency that she might go back to Holland.

That contingency, in fact, exists as much as the contingency that someone born in California, who is admitted to practice law in Connecticut, might go back to California, that someone who’s a citizen of the United States might choose to re-announce their United States citizenship and move to Israel.

That someone might die, that someone might commit a breach to the Canons of Ethics as a member of the Bar and be disqualified.

There are all sorts of disabling contingencies that one can have and certainly one of them would be that she can go to Holland.

That’s a contingency that her husband also is subject to, that anyone would be subject to in leaving United States.

I do not think it is what the State of Connecticut is getting at by requiring United States citizenship of all members or applicants to the Bar though.

Warren E. Burger:

Mr. Broiles, to pursue your hypothetical, if you are moving to Holland and having a Dutch wife, as a member of the Bar of the United — some one of the States of the United States, do you think you’d have a right to be a judge in Holland?

R. David Broiles:

No, I would not have a right to be a judge in Holland though it is interesting that my client, who is not a citizen to United States, and is a citizen of Holland, would on our research, have a right to be the Chief Justice of the United States Supreme Court.

Our research tells me that in Holland that is not the case.

I’m telling you what my client tells me about Dutch law.

I don’t purport to know anything about it other than that.

We have not found any disabling provisions for an alien to be a United States District Court Judge or to be on the Supreme Court of the United States of America.

Byron R. White:

We’re going to the constitution (Inaudible) need to be lawyers?

R. David Broiles:

There’s no requirement that a Justice on the Supreme Court be a lawyer.

Harry A. Blackmun:

Mr. Broiles, following through with your hypothetical as a matter of curiosity, do you know whether you could be admitted to the Bar of Holland?

R. David Broiles:

According to my client, I could not.

William H. Rehnquist:

Without being a Dutch citizen?

R. David Broiles:

Without being a Dutch citizen.

R. David Broiles:

Our research shows that there are very few countries that allow what one would call reciprocity without the requirement of citizenship.

One of the few being Japan, and it is apparently possible in England, but it is not possible according to her in Holland.

Harry A. Blackmun:

This is outside the record.

Is your client’s still a resident in Connecticut?

R. David Broiles:

She is presently living in Holland and is coming back Thursday and has the intention of practicing in Connecticut if this opinion is favorable to her.

She went to Holland and have a child.

She now has, since the beginning of this lawsuit has had two children.

Harry A. Blackmun:

Well, is the case moot?

R. David Broiles:

No it is not Your Honor.

There is no residency requirement in the State of Connecticut.

Rule 8 (2) requires that you have an intention to reside in the State of Connecticut which she has.

At the time the case was brought up to Court, she’d been a resident of Connecticut for two years.

Byron R. White:

So, an intent to reside that means an intent to live in Connecticut and indefinitely.

R. David Broiles:

No, it does not Your Honor.

It means, an intent to reside in Connecticut so long as it takes to become a member of the Bar.

Once one has become a member of the Bar, you need no longer to have to that intent.

For example —

Byron R. White:

How can you have an intent?

What does residency mean in Connecticut?

R. David Broiles:

Residency means living there.

Byron R. White:

Just being there?

R. David Broiles:

Just being there.

I, for example, I’m a member of the Connecticut Bar, a Commissioner of the Superior Court of the State of Connecticut as I stand here right now.

I have not resided in the State of Connecticut for two years.

I have been to Connecticut only twice in those two years, both times in connection with this lawsuit.

I became a member of the Bar at the State of Connecticut after my graduation from a law school in the State of Connecticut.

No questions were asked to me and no questions are required by the rules in the Superior Court of the State of Connecticut that I intend to permanently reside in the State of Connecticut.

Rule 8 (2) says, “You must either reside in the State of Connecticut or intend to reside in the State of Connecticut.”

It does not require an intention to permanently reside in the State of Connecticut.

I recently —

Potter Stewart:

Residence doesn’t mean domicile then?

R. David Broiles:

I think residence in fact does mean just that.

That you are at the time you make application for the admission to the Bar, have the intention to reside.

I take it domicile to mean actually physically be present.

Potter Stewart:

Well, also domicile involves an intent to remain there indefinitely.

When I stay on overnight in a hotel in New Haven, that doesn’t make me a resident —

R. David Broiles:

That would not.

Potter Stewart:

But if I have the intention residing in Connecticut indefinitely then I am and then domicile depends upon intent?

R. David Broiles:

I think domicile intents (Voice Overlap)

Potter Stewart:

(Voice Overlap) intent?

R. David Broiles:

Yes, I don’t think the intent can reasonably said to be indefinitely.

The intent must be to stay there having no particular plans to leave at this time to go some place else.

This is where I am now.

I’m not definitely living some place else.

Byron R. White:

That is the — residency doesn’t even mean that thing?

Potter Stewart:

No.

Apparently, no.

R. David Broiles:

No I don’t think so.

I don’t think (Voice Overlap).

Byron R. White:

But you could just move to Connecticut for long after you take the exam and leave?

R. David Broiles:

Based on the rules of the State of Connecticut, that is quite right.

That’s (Voice Overlap).

Potter Stewart:

So far under your submission in this case, somebody could come from Japan, or Uganda, or Nepal, and just fill out the questionnaire and take the Connecticut Bar exam.

R. David Broiles:

No that’s (Voice Overlap).

Potter Stewart:

That’s an absolute constitutional right to do so.

Is that right (Voice Overlap)?

R. David Broiles:

No, that’s absolutely not the position here.

One has to take — one has not only fill out the questionnaire but be interviewed by the Bar Committee.

Potter Stewart:

Alright, is there long enough for an interview.

R. David Broiles:

And the Bar Committee is satisfied to these qualifications.

Potter Stewart:

Alright he is found he law school in (Inaudible)

R. David Broiles:

As to his residency in the State of Connecticut then it seems clear under the rule of the State of Connecticut that he’s admissible.

Potter Stewart:

Well, except if (Voice Overlap)

Byron R. White:

If so required —

Potter Stewart:

Constitutionally requires, it’s what you’re saying.

R. David Broiles:

I’m saying that that’s what the rule of the State of Connecticut requires.

Potter Stewart:

No.

No, you’re saying what the (Voice Overlap) Constitution requires is that Connecticut must, if a person is otherwise qualified, must let him take the Bar exam whether or not he’s a citizen.

So as I say, you could from India or Ceylon, or Nepal, or Uganda, or Tanzania, and be there long enough for an examination and to show you’ve gone to law school and that Connecticut as constitutionally required, let him take the bar exam and if you passes it, do admit him to the bar of Connecticut, then he can leave the next night and never come back.

R. David Broiles:

That is not my position.

The Constitution does not require that.

The original question asked by you was with regard there was not the purpose to make sure that there was a residency, if the people were residents of the State in which they were lawyers.

In fact, the State of Connecticut does not require more than what you have described.

If the State of Connecticut were to just require a six-month residency requirement that may work well withstand the test of constitutionality.

The New Mexico case which you recently denied cert on —

Potter Stewart:

The issue in this case is whether or Connecticut can constitutionally require that a person be a citizen.

R. David Broiles:

That’s correct.

Potter Stewart:

And you’ve told this that it doesn’t require that he be domicile in Connecticut.

Therefore it since it doesn’t, then your constitutional claim does come down and does it not to what I suggested in my questions?

R. David Broiles:

It does not.

Potter Stewart:

Why not?

R. David Broiles:

Connecticut could require constitutionally.

Potter Stewart:

Alright, it could but it hasn’t you told us.

R. David Broiles:

It has not.

If this case, does come down to my client on the Connecticut rule qualify because she wasn’t back in the Connecticut in the opinion of the Board of Bar Examiners, a resident under that rule.

That has been so found and it is not disputed.

That Connecticut has no further requirements other than domicile or intention to be a resident.

In this case is, yes.

Someone could come to Connecticut and stay there, and if the board was satisfied with that (Voice Overlap).

Potter Stewart:

He comes from Timbuktu so long as he was there long enough for an interview, and filled out question 8 (2) that he was a resident in Connecticut and intended to stay there then Connecticut couldn’t require that he’d be a citizen?

R. David Broiles:

Connecticut could change its rule and require more about way of residence (Voice Overlap).

Potter Stewart:

I thought your claim was that Connecticut could not constitutionally require that a person be a citizen.

R. David Broiles:

It cannot require a citizen.

It can require more by way of residency than it does.

Potter Stewart:

But that’s not the issue.

R. David Broiles:

No, that is not the issue.

Potter Stewart:

The issue in your case, is whether or not the Constitution compels Connecticut to allow somebody to take its Bar exam even though that person is not a citizen.

Isn’t that what this case is about?

R. David Broiles:

That’s what this case is about.

Thurgood Marshall:

Isn’t it true that an existing Connecticut law a man could catch a plane from Anchorage, Alaska, change in New York, go to New Haven take the exam and will be admitted?

R. David Broiles:

That is the way the rule is written, yes, Your Honor.

I did not write the rule nor do I say that (Voice Overlap).

Thurgood Marshall:

And go right back to Anchorage?

R. David Broiles:

That is the Statement of the rule of the State of Connecticut.

That is not a constitutional requirement.

Now in this case —

Thurgood Marshall:

You say that if somebody came from Canada, did the same thing, he’d be entitled to the same discretion that the person from Anchorage had?

R. David Broiles:

If the Board of Bar Examiners were satisfied that he met the residency requirement under the facts that you stated, he would be certified by the board to that.

That that is a constitutional requirement, I deny.

William H. Rehnquist:

Well, Mr. Broiles, basically what you’re saying is that if this sort of fugacious presence is acceptable to the Connecticut Bar examiners on the part to someone coming from Alaska as Mr. Justice Marshall posits, it is a constitutional matter must be acceptable in the same circumstances except that the person comes from Canada or Japan?

R. David Broiles:

I’m not sure I understand it.

If you’re saying that he comes from Virginia for example to Connecticut and establishes residency under the minimum requirements the State of Connecticut presently has, and he should be able to do that with a resident alien status from Canada.

Yes, I am saying that because that’s the Connecticut rule, but I’m not saying that this is a constitutional requirement.

It is not.

They could establish I think a longer residency requirement and stricter standards for residency.

Byron R. White:

But in no event, they can condition it being a citizen?

R. David Broiles:

In no event — may they condition it on being a citizen.

Lewis F. Powell, Jr.:

Mr. Broiles, looking at the other side of this coin, what limitations, if any, are there on the length of time that the petitioner may remain in the United States as an alien?

R. David Broiles:

With regard to constitutional considerations by a Bar Examining Committee?

Lewis F. Powell, Jr.:

No, no, present law — may an alien remain in United States indefinitely?

R. David Broiles:

My client, as a resident alien, a permanent resident alien may reside in the United States indefinitely.

She is subject to the laws of that right on conditions that do not apply to citizens.

If she is guilty of conduct that is prescribed by the Federal statute, you know, habitual drunkenness, they are spelled out in immigration naturalization, she could still be subject to deportation.

They are certainly less stringent rules than one would expect of a bar association, so that were she guilty of those same acts and misconduct, she should certainly be disbarred before she is deported.

But she is permanently has a right to be here under the present statutory scheme.

Warren E. Burger:

That’s because she’s married to citizen, is it?

R. David Broiles:

No, Your Honor.

She in fact got that status before she married a United States citizen.

The — by virtue or the fact of marrying a United States citizen, she achieves one thing that she did not have earlier and that is that she could become a United States citizen in three years rather than five years.

But she got her permanent resident status prior to marrying a United States citizen.

I’d like to address myself to one inquiry raised by the brief of the State of Connecticut and that is that Graham versus Richardson does not apply in this case with regard to the standard.

That the classification based on alienage is subject to strict judicial scrutiny and that the State of Connecticut must show a compelling interest that this classification is necessary to me.

This is stated on page 5 of the brief of the State of Connecticut where it is held that no inquiry beyond reasonableness is really needed.

The reason that an alienage classification does receive special scrutiny, namely the alien’s non participation in Government fails here because the non participation is a purpose served by the classification.

As I understand that statement, the State of Connecticut is saying that Graham does not apply because of the fact that the very exclusion of aliens from the process of Government is the purpose of the rule.

I would take it that what they mean is that if aliens have the right to vote, there would be no holding by this Court but under the Fourteenth Amendment, all such classifications are subject to strict judicial scrutiny.

I would point out two examples where this is not the case.

That is that the franchise or the right to vote is not the purpose for the strict judicial scrutiny rule.

Children cannot vote and to my knowledge, this Court has not said, that by virtue thereof all classifications with regard to children are subject to the standard in Graham, a strict judicial scrutiny of a necessary and compelling interest.

Secondly, convicted felons cannot vote and I would be surprised if this Court would seriously entertain an attack on the 1968 Crime Control Gun Provisions, that govern felons’ possessions of registered and unregistered firearms on the grounds that they cannot vote.

The reason that classifications based on alienage are subject to the strict judicial scrutiny is because of their analogous characteristic to racial classifications and classifications based on sex.

The State of Connecticut has to show a compelling interest that’s furthered by this classification and that the means are necessary to further this classification.

Byron R. White:

Would you — would your position necessarily outlaw the exclusion of aliens from voting?

R. David Broiles:

It would — it would not necessarily outlaw it, but I will it this way Your Honor.

The question would be could a prohibition as all the States have, against voting by aliens withstand the test of Graham, that it need a strict —

Byron R. White:

What do you think about that?

R. David Broiles:

I think that it cannot.

I think that under the holding in Graham, that the fact that an alien suffers the disabilities must pay the taxes, must be subject to all the laws of the Government, would be a strong argument and that a strong constitutional argument I point in.

Byron R. White:

And when that one that you think should be prevail?

R. David Broiles:

I think that on the facts as I understand, it would prevail, yes Your Honor.

Byron R. White:

Alright.

If the voting restriction were to be sustained, I presume it might be connected with the idea of excluding aliens from the processes of Government and decision making?

R. David Broiles:

I would take that would one reason.

Byron R. White:

And if that were to be sustained, you might be in more trouble — that you would have a troublesome case here, wouldn’t you?

R. David Broiles:

I would say, it would make my case more troublesome to answer that, yes Your Honor.

Potter Stewart:

It’s a little strange to be saying that a classification that is made in the Constitution itself in many different provisions of the Constitution itself, i.e. between citizens and other persons who are not citizens within the United States, that classification is constitutionally suspect.

The Fourteenth Amendment itself makes that, makes those classifications.

The Fifteen Amendment is the right of to franchise to citizens, not to persons.

The Fourteenth Amendment gives some protections to citizens that it doesn’t give to persons.

It gives some to all persons and there are other places all through the Constitution where you find that distinction.

And isn’t it a little odd, you suppose to be saying that that’s constitutionally suspect classification?

R. David Broiles:

No, I think so, both.

Whether yes and no by some examples Your Honor.

I think there is a difference under — even if the Court went as far as Mr. Justice White as said that these rules might compel it there is still a difference between an alien and a citizen.

The Fourteenth Amendment talks about the privileges and immunities of citizenship.

A citizen by the virtue of the Fourteenth Amendment has the privilege permanently to reside in the State as a citizen of that State, no matter what his conduct maybe, and is immune from the laws of citizenship, or from deportation from the United States, no matter what his conduct maybe or what we may think of him.

That is not the case.

That is not a privilege or immunity of an alien.

An alien is entitled only to due process and equal protection of the laws.

Byron R. White:

But he’s entitled to those same rights as it gives the State, isn’t it?

R. David Broiles:

Equal protection of the laws and due process or from deportation?

Byron R. White:

From what you just said, yes.

R. David Broiles:

A State cannot take away if he is entitled, cannot have that taken away.

Byron R. White:

State can’t chase him out anyway?

R. David Broiles:

That’s true, State cannot chase him out.

Potter Stewart:

Thirteenth Amendment, protects all (Inaudible) you were saying.

The protection of Fifteenth Amendment stand —

R. David Broiles:

I realize the Constitution is fully distinguishable.

There are jobs (Voice Overlap).

Potter Stewart:

Precisely this distinction —

R. David Broiles:

Yes.

Potter Stewart:

— is what is my point.

Many other distinctions of course as well but precisely the one that you’re not telling us is suspect under the Constitution.

R. David Broiles:

Would have to meet the test that’s laid down in Graham of showing a compelling interest, yes.

That is not the case that has to be decided here.

What the record might show with regard the voting is another matter.

What the record shows in this case, with regard to attorneys is quite different.

This case is one step removed from the decision you must make in the case that was argued yesterday, Sugarman.

We do not concede that our client has the status of a governmental official.

She is not asking to be a member in the Government.

She is asking to be an attorney in the State of Connecticut.

The State seeks to analogize her to a governmental official.

They seek to analogize her by a virtue of the position that she would hold as an attorney in Connecticut, as a Commissioner of the Superior Court.

The State argues this on what they call a self-evident proposition that after all, the Government of the State of Connecticut has a right to limit its positions to citizens thereof.

In fact, the State of Connecticut does not limit positions for attorneys or commissioners of Superior Courts to citizens of the State of Connecticut.

I am both an attorney in the State of Connecticut, I am a commissioner of the Superior Court, I cannot vote in the State of Connecticut, I am not a resident of the State of Connecticut, and yet I have all of these positions that they seek to deny my client on the grounds that she is not a citizen.

The difference is that the State of Connecticut does not compel citizenship of Connecticut, the State of Connecticut compels citizenship of the United States.

Byron R. White:

What oath does the — does the practitioner in Connecticut take?

R. David Broiles:

The practitioner as an attorney takes the oath that he will not be guilty of any malice or take anybody’s money without just representation or allow any fraud to be perpetuated on the Court.

The significant oath is called the Oath of the Commissioner’s Court or the Superior Court and that oath is I will uphold the Constitution of the United States and of the State of Connecticut so long as I remain a citizen thereof.

That’s the Connecticut statute in Section 125.(Voice Overlap)

Byron R. White:

So long as you remain the citizen?

R. David Broiles:

So long as I remain a citizen thereof.

Byron R. White:

So you don’t, so the oath means nothing.

(Inaudible) for an alien?

R. David Broiles:

The oaths certainly mean something.

It’s a symbol that one is going to do just precisely what they say.

Byron R. White:

It only applies as long as you’re a citizen?

R. David Broiles:

That’s correct Your Honor.

Obviously, I’m no longer a citizen thereof and still have all the positions of an attorney.

R. David Broiles:

That does not make the oath meaningless when I take it.

Warren E. Burger:

But Mrs. Griffiths would, on your thesis, not be a citizen at the time she was admitted, if she were admitted —

R. David Broiles:

That’s correct.

Warren E. Burger:

— and so the oath would have just what meaning?

R. David Broiles:

We have suggested that this very statute in question provides for an alternative vote and that she should be required to take the oath that she will uphold the Constitution of the United States and the State of Connecticut.

So long she remains a citizen thereof, obviously, she can’t assert that, that can’t be a meaningful part of the oath for someone who’s not a citizen of either one.

In the alternative, if the State of Connecticut which has not ruled on the possibility of a judge changing the oath, and the power to administer alternative oath is vested in the judiciary.

If they will not change the oath, then under the argument, the oath would have to be unconstitutional.

Because it would just be another way of requiring that all applicants for admission to the Bar be citizens.

Potter Stewart:

That — is the form of oath in here somewhere?

R. David Broiles:

Yes it is your Honor.

The — I’m sorry, the form of the oath —

Potter Stewart:

Yes.

R. David Broiles:

— is in the supplemental, appears in the appendix to the jurisdictional statement.

Page 44 on my —

Potter Stewart:

Page 44.

R. David Broiles:

Page 44, that is the oath of the attorney.

Potter Stewart:

Thank you.

Byron R. White:

Is there any rule in the Holland that governs the citizens that they should not take oaths of foreign Governments under foreign constitutions?

R. David Broiles:

Yes there is Your Honor.

That is the problem.

If my client takes the oath as required under the Naturalization Act, she will lose her Dutch citizenship.

Byron R. White:

So she — what if she, things like when she swear to support the Constitution in the United States consistent with the laws?

R. David Broiles:

Yes you can Your Honor and as stated throughout that she will take both of the oaths (Voice Overlap)

Byron R. White:

What is the restriction in Holland that if you take an oath of — if you become a citizen of a foreign State, you lose your home?

R. David Broiles:

That’s correct.

That’s the only restriction I meant to imply.

Byron R. White:

(Voice Overlap) swear to support the Constitution of the United States.

R. David Broiles:

And the State of Connecticut.

Byron R. White:

Now, suppose that United States were at war.

Byron R. White:

Now, I suppose by swearing to support the Constitution of United States, you might be treating it home?

R. David Broiles:

If you’re asking me to speculate on that, there would seem to be that possibility yes.

Certainly, if this oath were taken after the declaration of war between the two countries that would be a strong presumption.

That it will be taken before —

Byron R. White:

So that her oath here, she prefers her Dutch citizenship to American citizenship and that’s pretty clear in this case.

That’s clear in this case, and in the time of war to support the constitution would be somewhat (Inaudible)

R. David Broiles:

I think it she would really have to make an election at that time, yes Your Honor.

We’re not saying the fact of alienage is totally irrelevant as a clue.

That the bar character committee can consider in passing on applications.

We’re saying that an across the board prohibition against aliens does not meet the standard, laid down in Graham of furthering a compelling State interest.

Potter Stewart:

What’s alienage have to do with character?

R. David Broiles:

We think that alienage has very little to do character.

Potter Stewart:

Well, it has.

It’s irrelevant to a person’s character.

I mean a person could have been a patriotic German in World War II and finest character but we were at war with that country and probably would not have admitted somebody like that to our Bar in between 1941 and 1945, but has nothing to do with that person’s character.

R. David Broiles:

In some you know — I certainly tend to agree with you.

I think alienage is totally irrelevant to admission to the Bar.

Obviously, four other states (Voice Overlap)

Potter Stewart:

It’s irrelevant to character now the question is — (Voice Overlap).

R. David Broiles:

I use the term character possibly broader than Your Honor does and that it seems to me that under the decisions, there are two general classifications; competence and character.

Now, in Baird, in Law Student’s Research Council, what you classified under the character included inquiries into political beliefs and loyalty.

Now, what we are obviously talking about here, when we talk about citizenship and non-citizenship has something to do with allegiance as Mr. Justice White has averted to numerous times.

That’s what I mean when I say it falls under character.

We’re talking about the types of things dealing with loyalty oaths which is precisely what this Court has dealt with, with regard to admission to the Bar.

Can she contentiously take that oath?

The answer is yes.

It is never been disputed that.

She can contentiously take the oath.

Byron R. White:

Except that she knows and you know that in one contingency, the oaths will mean nothing.

R. David Broiles:

She may elect United States citizenship on that contingency.

R. David Broiles:

I don’t know what she will do on that contingency (Voice Overlap) then obviously, she will have her — this Government were at war with the Netherlands.

Byron R. White:

You never know until it’s too late?

R. David Broiles:

Do you know in advance what she might elect with regard to contingencies concerning wars in the United States.

I don’t think any of us can predict those contingencies forever in the future.

I think that’s a contingency not all together unique to an alien or (Voice Overlap).

William H. Rehnquist:

But what Connecticut is saying it has a right to do as to eliminate people with the peculiar sort of contingency that your client might be?

R. David Broiles:

That is correct.

That what is the State of Connecticut is saying.

Thurgood Marshall:

And it applies to everyone who happens to be a resident alien?

R. David Broiles:

It applies to all resident aliens.

Thurgood Marshall:

It can also applies to the resident alien who has decided that next year, I am going to take that citizenship?

R. David Broiles:

It applies to all — yes Your Honor.

It applies to one who has filed a declaration of intent to be a citizen.

Harry A. Blackmun:

Mr. Broiles, if the Graham case were not on the books, would you be here?

R. David Broiles:

Yes I would.

In fact, this case was brought before any knowledge of the Graham case.

It was filed in 1970 before Graham was decided by the three-judge court and Graham was decided by this Court after it was appealed to the Connecticut Supreme Court.

It follows from the Truax decision.

Harry A. Blackmun:

So that in your opinion, you don’t have to rely on Graham?

R. David Broiles:

I don’t see any inconsistency between Truax and Graham and I think those are the main cases that interpret the Fourteenth Amendment this way.

And I think the answer to your question is yes, you do not have to rely exclusively on Graham.

Thank you.

Potter Stewart:

Truax was not a — wasn’t an equal protection case?

Warren E. Burger:

Mr. Tiernan.

George Tiernan:

Mr. Chief Justice and the members of this Court.

The issue really revolves about this point, that the applicant here is seeking admission to take the bar examination in Connecticut, hopefully with the final expectation of admission to the bar.

Warren E. Burger:

Would you raise a little bit Mr. Tiernan?

George Tiernan:

Yes.

That she’s seeking admission to the Bar of the State of Connecticut on her own terms to some degree at least.

When she was examined before the committee, one of the committees which of course acts as an agency for the judicial department of the State, the Court to the State in the procedure for bar admission which of course appears in the appendix, she was inquired of as to her residence and so forth beginning at page 30.

George Tiernan:

This is the transcript of the hearing before the committee on recommendations.

Now, when the question arrived as to her citizenship, she unequivocally stated that she was not and that she had no plans of becoming one.

The inquiry and the interrogations stopped at that point by the committee.

The first question posed here by the bench satisfies me that that is a natural inquiry and to my view, the first inquiry.

Why didn’t someone ask why?

Now, of course, the first and basic requirement of the Connecticut rules, which has been an effect for about a century, is first, that he is a citizen of the United States.

Just prior to that, there is a statement to entitle an applicant to admission to the Bar except in Section 12.

One might very well say, well what’s that exception is about.

The exception 12 merely refers to the admission on motion from other States by attorneys in the State of this country.

Byron R. White:

Could you tell me what requirement for citizenship of Connecticut (Inaudible)?

George Tiernan:

What do you mean by that?

Byron R. White:

Like how do you become a citizen to the State of Connecticut?

George Tiernan:

No, the citizen of the United States, of course, in order to become a citizen, when you become a citizen in the United States of course, you become a citizen of a State that you are presently where you are.

There is no specific answer.

Every citizen of the United States is also a citizen of the State in all to allegiance to both, United States v. Lanza, 260 U.S 377.

The case decided here in 1922.

Potter Stewart:

But so far as Connecticut requires, there’s no requirement that he’d be a citizen of Connecticut is there?

George Tiernan:

No.

Potter Stewart:

It’s simply a requirement (Voice Overlap).

George Tiernan:

The only requirement is that he is a citizen of the United States and then the second question which was —

Potter Stewart:

Has to do with residence that is not before us here?

George Tiernan:

That is right (Voice Overlap)

Mr. Justice Stewart that is correct.

That he is a resident of this State, or intends to become such resident.

Now, of course, that question was really not followed at all or inquiry following the unqualified statement by this applicant before a said committee that she had no intention of becoming a citizen.

That was (Voice Overlap)

Thurgood Marshall:

In the Connecticut law, a man says “I intend to become a citizen,” Is he allowed to be admitted to the Bar?

George Tiernan:

Well of course the rule doesn’t limit it just to — it says there, were entitled and that applicant to the admission to the Bar and of course only one of the steps is the citizenship.

Now, the question of whether a person says I filed a declaration.

Thurgood Marshall:

No, my question is, he says, “I intend” the language of the rules is “I intend to become a citizen,” could he be admitted?

George Tiernan:

That has not been decided, but I presume that he would not until he evidenced by some direct manifestations such as filing a declaration.

Thurgood Marshall:

Well, he files his declaration, would he be admitted?

George Tiernan:

That I could not answer under the specific rule but I have (Voice Overlap).

Thurgood Marshall:

Doesn’t the rule say that?

George Tiernan:

As to residence of course, yes that’s right.

One comprehends the other.

Thurgood Marshall:

Right.

George Tiernan:

And I have no doubt.

Thurgood Marshall:

And then he becomes admitted and he withdraws his application.

Is he still a member of the Bar or not?

George Tiernan:

He is admitted to what, to the bar or to the examination?

Thurgood Marshall:

To the bar.

George Tiernan:

Well, he couldn’t be admitted to the Bar —

Thurgood Marshall:

Until when?

George Tiernan:

Until he is qualified as a citizen of the United States.

Thurgood Marshall:

He has to then become a citizen before he could come to the Bar.

George Tiernan:

Yes sir.

Thurgood Marshall:

But he can take the exam on intent?

George Tiernan:

On a declaration of (Voice Overlap).

Thurgood Marshall:

I don’t think it affects this case at all.

George Tiernan:

No.

Thurgood Marshall:

How do you look at through acts against race?

George Tiernan:

That’s a very — that’s the vital question.

That’s the vital question.

May I just introduce.

Thurgood Marshall:

Sure.

George Tiernan:

Thank you very much.

The one thing occurs to me is the fact of this Court does not have any machinery for admission to the Bar.

Presumably, that through the history of this Court is because they —

Warren E. Burger:

Mr. Tiernan, you must stay near the microphone if you want to be on the record.

George Tiernan:

I have been accustomed to being heard on the past.

Warren E. Burger:

Well, we record these, as you see.

George Tiernan:

Oh, I beg your pardon.

This Court derives its qualifications to right degree of practicing before this Court by State’s attendance presumably because they believe through the past that they are proficient enough to be accepted.

And of course the federal system has no separate or distinct machinery for admitting people to practice before us.

Now, one of the basic rules of admission in this Court is that the applicant for a practice before this Court as today must represent that they practiced in a State of this country for a period of three years.

It would be difficult to understand how a person could make a solid showing for a permission to practice here on that requirement.

Because of course, up until this year, there was no single State that unequivocally by decision decided or found that citizenship was not required for admission to the Bar.

Now, in reference to Graham —

Harry A. Blackmun:

In that connection, Mr. Tiernan, you have admission by a motion in Connecticut as I understood from your prior remark?

George Tiernan:

That is correct.

Harry A. Blackmun:

And suppose, well there are States today which permit a person to be admitted to the bar without proof of citizenship.

George Tiernan:

Yes.

Yes, there are couple.

Harry A. Blackmun:

And if someone presented himself to the Connecticut bar authorities with proof of admission in one of those States, would Connecticut admit him by motion?

George Tiernan:

No because under the Section 13 at the rules, subparagraph 3, one of the kinds in addition to his practice in the other State is that he is a citizen of the United States.

That is common to both non-resident Bar, those applying to motion and those applying directly.

Harry A. Blackmun:

And yet here, he could be admitted if he had three years behind him?

George Tiernan:

Three years?

Harry A. Blackmun:

Three years of practice.(Voice Overlap)

George Tiernan:

Of course, I take it that this issue is not similar to the issues raise or the factual situation raised in Graham and Dunn versus Blumstein voting rights.

Social benefits in Graham — because of course in those cases, we have a situation where with reference to Graham which advanced that compelling interest, State interest test to be applied in alienage classifications.

Right there, it seems to me that that case distinguished in the situation there because of course the financial integrity of a State was involved just as in Shapiro, nothing about anything else.

That was a case where they were trying to deprive the people of visiting the State of welfare benefits undergrounds of no durational residence for citizenship.

And they said that the State had to show a compelling State interest.

That is hardly to be I think compared with admission to the Bar because of course the reference that was made to the brief concerning the special judicial scrutiny required.

As a matter of fact, the mere situation in Graham and the voting case in Graham and Shapiro, the right to travel which although doesn’t appear specifically in the Constitution has been inserted therein by judicial decision, and the fundamental right of travel of people in this country was restricted, says this Court in those cases.

But in the Graham case, there was a discussion concerning one of the tests used in our history of special interest and in that very case, Graham on page 374, 403, this Court stated that although the special interest test was rejected, so far as the social benefits were concerned, social benefit cases which of course Graham represented, this Court specifically said, whatever maybe the contemporary vitality of the special public interest doctrine and other context at the Takahashi, we conclude so forth.

In other words, they left open, this very Court left open even the application of a special interest test.

Now, Mr. Justice Marshall, you referred to the — talked about Truax which of course is the case that obviously when this country grants entrance and vote to an alien, obviously, one follows the other.

George Tiernan:

The early efforts of course, when this question was raised from — in this country from a country that once had many aliens, when we’re in the formative stages, when that question was raised here in the — as in to the Truax case, the Court said it was limited to the right of an alien to indulge in the common occupations of men or sometimes it was a common I believe industrial occupations.

That has always been interpreted even by writers, scholarly writers, law writers, that that did not include professions.

Now, incidentally in this connection, efforts have been made to add.

Thurgood Marshall:

Could you give me that scholarly writer?

George Tiernan:

The Columbia Law Review, 57 Columbia Law Review 10 (12) at page 10 (26) in 1957, the title of which is “The Constitutionality of the Restrictions on Aliens’ Rights to Work.”

Thurgood Marshall:

My question was the name of the scholarly writer?

George Tiernan:

I didn’t have the name.

Thurgood Marshall:

I couldn’t find it either.

George Tiernan:

That is correct and that is why I didn’t give you any name.

Thurgood Marshall:

But it is said that (Voice Overlap)

George Tiernan:

No, it isn’t.

It’s a comment, I think.

Byron R. White:

Student comment.

George Tiernan:

I don’t know —

Thurgood Marshall:

It’s a student comment, that’s all it is.

George Tiernan:

Well, there were others.

That was just —

Thurgood Marshall:

It was a scholarly student’s comment.

But what could point to me in Truax, that says as limited that in any fashion at all and I think you’ll agree that Chief Justice Hughes didn’t use broad language that they can manage.

He said it was a denial of equal protection for a State to draw the line between alien and the citizen in the matter of employment and right to make a living.

George Tiernan:

Yes.

But of course, how can this be considered as all inclusive and have any meaning to the Fourteenth Amendment.

How can this be considered as being all inclusive for all forms of occupational activity including the professions when it’s indicated classifications are permissible that must be justified.

After all even Bar admission rules must be within the framework of the Constitution, but how can we ever permit any classifications as such so far as employment is concerned, if that is so?

Now, —

Thurgood Marshall:

Well, do you agree that the State of Connecticut could not say that redhead people couldn’t be admitted?

George Tiernan:

I hope not.

Thurgood Marshall:

Of course.

What is the reason that the aliens — this is all aliens, this is the — is it competence or is it character or what is it?

George Tiernan:

I don’t know.

Thurgood Marshall:

What is it?

George Tiernan:

Why as the matter of fact, Mr. Justice Marshall, I believe history reports that when Connecticut was saying no to aliens, they were saying yes to women.

Now, I don’t know whether that would be called and that was sometime ago.

Thurgood Marshall:

Well, I’m only asking about aliens, why are they excluded?

Why?

George Tiernan:

Because in the State of Connecticut, the Court has established by this Court, presented, I should say, by its decision that because of the status and the position of the lawyer in the State, there are other conditions or qualifications that are required, citizenship, residency, educational requirements, they say, this Court stated that in order to have a system toward the administration of justice and in the public interest in Connecticut, a lawyer who is called with the right to command actions by authority of the State of Connecticut, in connection with his affairs both private, both public, and his reference to individuals as a counselor.

Thurgood Marshall:

Do you mean that an alien is more dangerous in his private life than a citizen?

George Tiernan:

No.

Thurgood Marshall:

Do you — do you say that an alien is less competent than a citizen?

George Tiernan:

No, I didn’t say that.

Thurgood Marshall:

Do you say are alien has less character than a citizen?

George Tiernan:

What you’re trying to say is that alienage is an irrational classification per se.

This Court has not said so but you have to have the opportunity to say it right now.

Thurgood Marshall:

But I am waiting for you give us a reason why we shouldn’t say it and I’m still waiting for that reason.

George Tiernan:

I’m backing up to the Court.

In this case in which I represent.

In Connecticut, the Court stated that because of the position that member of the Bar holds that citizenship is a requirement, that there is nothing irrational above the State asking for that in accordance with the precepts set down by the decisions of this Court.

And in the first place, as one said in — just examine the duties of a lawyer, his relationship both to the individual, the public, his connection with the Court, his involvement of the rules, his involvement of the procedure, and the changing procedure and changing rules, all of this is connected with the Government.

Thurgood Marshall:

Am I correct that this applicant has three law degrees?

George Tiernan:

And there are three degrees.

I think one is, well two.

No question she has a degree from —

Thurgood Marshall:

Well, didn’t she qualify to understand the rules?

George Tiernan:

Oh!

She —

Thurgood Marshall:

Well, you said that the lawyer has to understand the rules, well, she’s qualified?

You don’t question that, do you?

George Tiernan:

I didn’t say she — it’s obvious, she understood the rules because she so admitted in the transcript.

She was asked if she was aware of the rules.

She said yes and she signed the affidavit of the application.

George Tiernan:

She indicates —

Thurgood Marshall:

I’m still trying to get the reason.

You haven’t at least tried to satisfy me of any reason at all except the fact that she is an alien?

George Tiernan:

Well, in the first place if Your Honor please, the Court stated really three things.

The Court stated that first a lawyer in Connecticut has generally stated is an officer of the Court.

Secondly, that in Connecticut in addition to that, the attorney is a commissioner of the Superior Court.

And in that connection, the commissioner of the Superior Court in Connecticut has the right to sign civil suits and command executive officers to serve those documents in the State and —

Thurgood Marshall:

Well, this man said he resides in and he is now a resident of Fort Worth, Texas can go up there and serve one right now, am I correct?

George Tiernan:

Yes he can sir but he can you can sign that issue.

Any member of the Bar as the commissioner’s brief automatically becomes the Superior Court.(Voice Overlap)

Thurgood Marshall:

Where he comes up and serve one and go back to Fort Worth and that doesn’t offend Connecticut at all.

George Tiernan:

I —

Thurgood Marshall:

As a matter of fact he could move to Honolulu and come back and do it.

Forever more he could move to the Netherlands.

Am I correct that he could move to the Netherlands and come back, and do commissioner work?

George Tiernan:

Well, of course, as long as he retains — as long as he retains his position in Connecticut.

Thurgood Marshall:

Alright.

George Tiernan:

Whether they are known by the authorities or not and in whatever connection, he is of course clothed with the rights of the office that he has.

Thurgood Marshall:

Would he lose that if you took out double citizenship?

George Tiernan:

Well, of course that would be obviously a question —

Thurgood Marshall:

Would he, under those rules?

George Tiernan:

Well there’s no rule here that says that if you can be a citizen of two countries and still be a lawyer and of course —

Thurgood Marshall:

Well, is there anything?

Well if a person gives up his citizenship, does he resign from Bar automatically?

George Tiernan:

If he gives up his citizenship?

Thurgood Marshall:

If he gives his citizenship, his United States citizenship five years from now, does he lose his Bar membership in Connecticut?

George Tiernan:

Oh!

No there’s no such provision.

Thurgood Marshall:

So, that this man can — who is sitting in there –Mr. Broiles, could go to Netherlands, live in the Netherlands, take out the Netherlands citizenship and he’ll still be able to practice law in Connecticut.

Am I right or wrong?

George Tiernan:

Well, by what test or standard do you mean?

Thurgood Marshall:

Under the — under the law in Connecticut right now?

George Tiernan:

Well, there is no a specific provision that covers any particular case, Your Honor.

Thurgood Marshall:

Well, there’s nothing in the law that says once he loses his citizenship, he loses his right to practice law?

George Tiernan:

Well, I assume that that could be considered without any specific reference thereto.

Just the — then you get into the international question or the federal question of citizen — may I just call attention to this Court, to the fact that in this particular case, there was question raised at the committee hearings as to whether or not there was any treaty existing between the Netherlands and the United States.

And the applicant said that there was no treaty concerning reciprocal rights of either national to practice in the state or country of the other.

But actually at that very time, there was a treaty between – and is a treaty between the Netherlands and the United States which in declaring the national treatment of the nationals of either country, specifically excluded by by the protocol of that treaty, the professions.

Harry A. Blackmun:

In those treaties?

George Tiernan:

It was after 1956.

Harry A. Blackmun:

While I have interrupted you Mr. Tiernan, let me ask you one other question which really isn’t here on case but it still bothers me?

George Tiernan:

Yes.

Harry A. Blackmun:

Am I correct in my understanding that Connecticut in addition to requiring citizenship for attorneys and physicians also requires it for funeral directors, and embalmers, and hairdressers, and barbers, and sanitarian?

George Tiernan:

Yes, that’s what’s listed in the original Court decision of the Supreme Court as a reference of the appendix.

Harry A. Blackmun:

Is it a fact that this State does this?

George Tiernan:

There is to the statute so — still there.

Did you include barber sir?

Harry A. Blackmun:

I did.

George Tiernan:

That is becoming moot in Connecticut, but that is a fact that those statutes are still there.

Byron R. White:

Because there are no barbers?[Laughter]

George Tiernan:

You see I come from New Haven, Justice White and the demand is, bless me.[Laughter]

The — now, with reference to the (Inaudible) the question of dual citizenship of course raises a problem.

This has been reiterated in the Courts of this — in this Court — in the decisions of this Court and it’s impossible in the case of lawyers to imagine that a person with dual nationality, dual citizenship, dual allegiance, would be able to fulfill the task that that person has in reference to the practice of law.

Thurgood Marshall:

How is dual citizenship involved here?

George Tiernan:

Well, it isn’t because of course this applicant wants it this way, being a citizen of the Netherlands —

Thurgood Marshall:

But I don’t — she doesn’t claim dual citizenship in any?

George Tiernan:

No.

Thurgood Marshall:

Well, how is it in this case?

George Tiernan:

Well, she’s getting around that.

She’s going to have both options.

George Tiernan:

She’s going to be a citizen of the Netherlands, a country of origin and the right to practice law in Connecticut and if that’s isn’t having it both ways, I can imagine what is.

The fact is that also referred to here in this situation is the case of Schware, the case to which — it’s about the only case that set down to test of what is necessary for the admission standards reasonableness was required and its felt that here that the rule in Connecticut is reasonable and rational with reference to the admission of any candidate for the Bar of Connecticut.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.