In re Stolar

PETITIONER: Martin Robert Stolar
RESPONDENT: State of Ohio, Columbus Bar Association
LOCATION: Ohio State Bar Association

DOCKET NO.: 18
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: Ohio Supreme Court

CITATION: 401 US 23 (1971)
ARGUED: Dec 09, 1969
REARGUED: Oct 14, 1970 / Oct 15, 1970
DECIDED: Feb 23, 1971
GRANTED: Oct 13, 1969

ADVOCATES:
Leonard B. Boudin - for the petitioner
Robert D. Macklin - Assistant Attorney General, for the respondent

Facts of the case

Martin Robert Stolar was admitted to the New York Bar in 1968. In his application, he answered several questions about his social, religious and political affiliations. When Stolar applied to the Ohio Bar in 1969 he supplied the Ohio Bar Association with all of the information from his New York Bar application. The Ohio Bar also subjected Stolar to an oral interrogation where they asked questions relating to whether he was associated with any organization that advocated the violent overthrow of the government. Stolar refused to answer those questions and the interrogation committee recommended that he be denied admission to the Bar. Stolar had nothing in his record, other than refusal to answer the questions, that showed that he did not have the necessary good character for admission to the Ohio Bar. The Ohio Supreme Court approved the committee’s recommendation without opinion.

Question

<p>Do the Ohio Bar’s requirement that applicants answer questions about possible Communist Party affiliation violate the First Amendment?</p>

Media for In re Stolar

Audio Transcription for Oral Reargument - October 14, 1970 in In re Stolar
Audio Transcription for Oral Argument - December 09, 1969 in In re Stolar

Audio Transcription for Oral Reargument - October 15, 1970 in In re Stolar

Warren E. Burger:

-- speak whenever you are ready.

Leonard B. Boudin:

Thank you, Your Honor.

Mr. Chief Justice, and may please the Court.

I indicated yesterday three policy considerations why I thought programs of this kind, requiring an advocacy and membership and advocating the organizations were not dangerous, were not the less restrictive means that might be used.

I would add one fourth item, that is the great question as to whether there really is predictability in determining whether people, who have been members of the organizations like this are advocating, will turn out actually after becoming members of the Bar to be in any way deleterious or delinquent in their duties.

But these four considerations, which I have mentioned, have led me to two conclusions which I submit to the Court.

The first is whether assuming there should be any screening program of any kind, and whether there shouldn’t be certain safeguards in order not to have the widespread, wide ranging inquiry and I suggest two safeguards to the Court, if we are to continue with a screening program.

The first is that the organization concerning, which an inquiry is made, is an organization which has been found, judicially found, as in Konigsberg to be a organization engaging in unlawful activities.

This is, of course, in wide contrast to the question involved in this case where the questions are wide ranging and vague.

And the second consideration I suggest to the Court is that there should be some foundation, some reason to believe before this kind of inquiry is made that the individual involved has adhered to participate in the unlawful activities of such an organization.

But, of course, our principal point having suggested this middle ground, a ground that we do not -- that we prefer not to have as against the next one, is the question of whether there should be any screening program at all.

We suggest that in the case of lawyers, their peculiar susceptibility to the controls of the courts makes the alternative the least less respective being preferable to the question of a screening program with the dangers that I have indicated.

Potter Stewart:

You suggest there should be no screening program at all.

I don’t understand.

There should be Bar Examinations and you said (Voice Overlap).

Leonard B. Boudin:

Oh yes, of course.

I meant the questions of the kind with which we are dealing here.

I don’t need Bar Examinations to be excluded obviously.

And the fourth point, Your Honors, which I am suggesting as available as very strong, but less restrictive in this sense, an effect upon First Amendment rights are these.

The lawyer himself is subject as an officer of the court as well as his clients to the contempt power of the judges for whatever that he may do in the court room or with respect to the cases.

The lawyer alone is subject to the very powerful disciplinary proceedings ending in the dreaded disbarment which is ruinous.

The lawyer in special cases is subject to, of course, a malpractice suit by his client and finally, as we approach the area of criminal activities with which we are most concerned, the lawyer is, of course, subject to criminal prosecution.

This would be my general observation, unrelated necessarily to the peculiar facts in our case.

But in our case, in the circumstances of this case, we think there is neither obstruction of the process of a kind that was found by the court to exist in Konigsberg and Anastaplo, nor a substantial state interest requiring this petitioner to answer these questions.

And I submit that because as I indicated to Your Honors in my original presentation, all of the specific questions that were put to the petitioner, including those that were involved in Konigsberg and Anastaplo were answered by him and there was not the slightest indication of the committee's report that he would not have answered any other specific questions.

It was the general ones to which he took exception.

And he took exception and I think there is no question as a matter of basic principle because the committee had before it his answers to many of these questions, only slightly different worded, that he had made in the New York Bar Examinations.

Obviously, the change in position with due to the notoriety that was given to our then pending Wistrik (ph) case which Professor Dawson will argue.

So the second point with respect to substantial state interest, whatever maybe the theoretical interest of a state, is it not significant that in this case no explanation of a kind that was given in Konigsberg by the state based on a statute or in Anastaplo based upon a rule of the Court, namely the concern about the nature of the organization is offered in the state's brief.

The state's brief gives a completely different theory, a wide ranging theory as to why these questions are asked.