Konigsberg v. State Bar of California

PETITIONER:Konigsberg
RESPONDENT:State Bar of California
LOCATION:Military Stockade

DOCKET NO.: 5
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 353 US 252 (1957)
ARGUED: Jan 14, 1957
DECIDED: May 06, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – January 14, 1957 in Konigsberg v. State Bar of California

Earl Warren:

Number 5, Raphael Konigsberg versus The State Bar of California and The Committee of Bar Examiners of the State Bar of California.

Edward Mosk:

I’m ready for the petition, Your Honor.

Earl Warren:

Mr. Mosk.

Edward Mosk:

Yes.

Earl Warren:

You may proceed.

Edward Mosk:

Thank you, Your Honor.

Mr. Chief Justice, Associate Justices, Mr. Belcher.

This case arise before this Court by reason of the action of the Committee of Bar Examiners in the State of California in denying the petitioner admission to the Bar of California by reason of his alleged views, opinions and associations.

Under the State Bar Act of California, the Committee of Bar Examiners is empowered to certify to the Supreme Court applicants who fulfill certain requirements.

There is no dispute that the petitioner here fulfilled all of the educational, age, residence and other requirements of this sort.

There are in addition, two other requirements.

One is that the applicant be a person of good moral character, and the second is that the legislature in California has said that no person who advocates the overthrow of the Government by force and violence or other unconstitutional means shall be certified.

Now, shortly before the time that the petitioner here took the bar examination in the State of California, he was called in before the Committee of Bar Examiners and asked certain questions relative to his qualifications.

He thereafter, with the consent of the Committee took the bar examination and passed it so that there are no impediments other than the position of the Committee of Bar Examiners that the petitioner here has not sustained his burden of proof.

That he is a person of good moral character, and they state he has not sustained his burden of proof that he does not believe in the overthrow of the Government by force and violence.

Now, over a period of time, there were four hearings held before the Committee of Bar Examiners.

Three, before this other in subsection and then a final hearing in effect that de novo hearing before the full committee of these bar examiners for the State of California.

In the course of these hearings, the following facts were basically established.First of all, the petitioner himself, the background of the petitioner, a graduate of Ohio State University in 1931, later getting a master’s degree in Social Work, taught History and English Literature in the Cleveland High School.

He was a supervisor in the Department of Health here in Washington, D.C.

He was a Research Director of the Council of Social Agencies in Los Angeles.

He was a supervisor for the State Relief Administration in California.

He was a Director of Social Services in the City of Hope Sanitarium in Duarte, California.Subsequently, in the — during the war, he became a captain and he — and was in charge of information and education for some 400,000 soldiers in Germany in the Seventh Army.

And three times, he was a candidate for public office in Los Angeles, twice for the Board of Education and once for the State Assembly.

The record contains no single fact other than those which I shall refer to in a moment, indicating anything about his work record, his personal record, his life in the community of Los Angeles other than the very highest recommendation as to his character.

In addition, the petitioner brought before the Committee of Bar Examiners some 40 letters from every single stage of his life as a social worker in the hospitals, in the army, everything, in — in the university.

He brought letters from persons like Right Reverend Monsignor Dwyer, from Rabbi Jed Cohen, community leaders all indicating that he had an impeccable personal record in his community.

Now, at the hearings, the Committee commenced by introducing and showing to the petitioner a series of articles which he had written during a brief period of employment with a Los Angeles newspaper known as the California Eagle.

This is a newspaper of weekly circulation and primarily — primary circulation is in the Negro community of Los Angeles.

These articles were vigorous, pungent, strong, challenging political articles but all dealing with the political — were all commentaries on the political affairs of the day.

These articles were introduced and shown to the petitioner.

Edward Mosk:

He acknowledged that he had written them over a period of about a year and he was asked at various times.

“Do you still believe the things that are in these articles?

Would you write the same articles today?”

And a number of questions of that sort.

Now, he further introduced testimony.

There was further introduced certain testimony that in one point he had appeared before a — the California Senate Investigating Committee, commonly known as the Tenney Committee.

And he was asked whether the testimony that he had given at that time before that Committee would be his opinion at this time, and he was shown a written statement that he had introduced at that time and asked whether he still believe these things to be true.

Now, he was also asked whether or not he was a member of the Communist Party.

There was introduced a witness who came before the Committee who testified that sometime in 1941 or 1942, the petitioner had been a member of a small group in the Communist Party with this — with this witness.

She was asked on cross-examination whether or not what was said at the meetings, she recalled nothing that was said in any of the meetings.

She was asked whether there was any discussion of advocacy of force and violence, she said, she didn’t remember anything that anybody said including this petitioner at any of those meetings.

So that there was no evidence presented at the hearings other than the — their testimony that he — that this witness who incidentally went under cross-examination, when asked how she knew this petitioner she said, “Well, he’s the only face in the room that’s familiar to me, so he must be Konigsberg.”

But assuming that the — that there was some element of identification, the only testimony that there was, was the bare testimony that he may have been a member of the Communist Party in 1940 or 1941.

Now, he was asked questions regarding an advocacy of force and violence.

He answered, responded to every such question and not once but about six times during the course of the hearings.

He said specifically, “I do not.

I never have.

I never will.

My entire record, my entire background is contrary to any belief in doctrines of force and violence.”

He did on one occasion respond to a question, “Are you a Communist?”

And he answered to this question, “no,” if you mean by that, a philosophical Communist.

There was some colloquy between the Committee and the petitioner at this point in which he indicated that what he was trying to distinguish was between his belief in Jeffersonian Democracy which did not mean advocacy of force and violence and their interpretation apparently of Communist Party membership.

So that he specifically denied that he was a Communist.

He declined to answer repeatedly saying that this is solely on the basis of high moral principle.

He said that this is not self-incrimination.

I am not relying on the Fifth Amendment.

I’m relying solely on the First Amendment and my — my deep abiding feeling that you have no right to inquire into this area.

Didn’t he also say the he was worried about being prosecuted for perjury?

Edward Mosk:

The — at the very beginning, Your Honor, there was some reference to his saying, “Well, you can bring lots of nameless informers.”

But I think a — a careful examination of each of the references that he made would indicate that the basic reference was that on the basis of the First Amendment they had no right to inquire.

Edward Mosk:

He did make such comments.

I think on perhaps one or two of the occasions.

Page 94 and 95 of the record.

Edward Mosk:

Yes.

There — there were such references, Your Honor.

However, the — the basic position that he took with regard to his refusal was this is a First Amendment position and you have no right to inquire.

Thereafter, of course, they did bring a — they did bring a witness before them and from that point on certainly, any references that he made were always to his — his basic First Amendment position.

Now, the only —

Felix Frankfurter:

When you say the First Amendment, what part of it — assuming — assuming it’s already — you’re not here on the First Amendment.

You can only be here under Fourteenth.

Edward Mosk:

That’s correct, Your Honor.

Felix Frankfurter:

What is then the Fourteenth that is infused from the summary, what is it?

Edward Mosk:

Well, we have two —

Felix Frankfurter:

Did he ask to be permitted to speak?

Edward Mosk:

We have the — the First Amendment as included within the Fourteenth.

Felix Frankfurter:

On what part?

Was it an abridgment speech, the abridgment of speech that was involved?

Edward Mosk:

The — the abridgment of speech and —

Felix Frankfurter:

What — what abridgment was it?

Edward Mosk:

He was being required, Your Honor, to — to speak as to his associations and in connection with the articles and —

Felix Frankfurter:

That is not abridgment of speech.

Edward Mosk:

Well, it — it comes, Your Honor, from the — the whole feeling that one must not — we must not encroach on the right of association.

Felix Frankfurter:

Well, that’s the difference and I understand that.

Edward Mosk:

That’s correct.

Felix Frankfurter:

Now, what right of association was the encroachment?

Edward Mosk:

The encroachment was that —

Felix Frankfurter:

I — I can understand your argument that he had a right to belong to the Communist Party.

Edward Mosk:

That’s correct.

Felix Frankfurter:

Is that what you’re arguing?

Edward Mosk:

That is part of our argument, Your Honor, but it is not the basis in which we’re here.

Felix Frankfurter:

(Voice Overlap) all vague and looks upon the First Amendment.

The First Amendment would be — what Fifth Amendment would (Inaudible) to other people?

Edward Mosk:

Well, what we have here, Your Honor is the — by the use of this testimony and the kind of questions that they are asking him in the area in which he declined to answer, we have a situation where they are coming up with an arbitrary determination of his unfitness, so far as his good moral character is concerned.

Felix Frankfurter:

I can understand that, but I would like to have a particular delineation of definite and the indication, what part, what in the Fourteenth Amendment other than arbitrary determination that he can’t practice law.

I understand that.

Edward Mosk:

That’s correct.

Felix Frankfurter:

I understand that.

But when you talk First Amendment, you talk something that I don’t understand unless you define it.

Every time we got any objection in this Court, now they only say First Amendment as I’ve said it, other claims refers specifically and all sorts (Inaudible), the First Amendment, the next amendment apply.

Edward Mosk:

Well, in this case Your Honor, what we have is a — and I — I think is basically a margin of the general freedom to be — to be free from inquiry into one’s beliefs, one’s associations which are generally interpreted as coming within the First Amendment protections as protected by —

Felix Frankfurter:

What about the general interpretation?

Do you mean to say the state statutes require him in his — lots of belief that a man has?

Edward Mosk:

I would not say that they cannot, Your Honor.

Felix Frankfurter:

It’s all right.

Then, you have to be very particular —

Edward Mosk:

All right, in —

Felix Frankfurter:

— as to what it is that he was — that was inquired as to this.

What is the inquiry with us to testify about that disclose everything?

Edward Mosk:

Right.

In this, the — the substance of the First Amendment as it is grown as I understand it, Your Honor, is that there are areas of — of speech, of political association which we say that society will prevent that the values to society are such that the encroachment of the State by asking questions or inquiring into on asking the person to give up his rights in this area is protected by the First Amendment.

Felix Frankfurter:

I don’t know such decision of this Court.

Edward Mosk:

I think perhaps Your Honor, in a sense we may be asking this Court to go further than it has in any case in this area.

But in this case of course, what we have is a determination which comes within the arbitrary determinations of the Fourteenth Amendment and this of course is basically what we’re — we’re —

Felix Frankfurter:

I understand that (Inaudible)

Edward Mosk:

I’m sorry, Your Honor.

Felix Frankfurter:

I understand that.

Edward Mosk:

All right.

Felix Frankfurter:

I understand the claim that life or — life and liberty over property may not arbitrarily that they could take, that is, without any justification on the part of the State to pursuant calling or the exercise of what has been deemed as human right.

I understand that.

When you talk First Amendment that goes from abracadabra, you loosely complete, gain others but you loosely complete.

Edward Mosk:

Well, I — I suspect that perhaps, I’m using it more loosely —

Felix Frankfurter:

It’s not that we shouldn’t discuss that, I just want you to know it means nothing to me.

Edward Mosk:

I — I think perhaps Your Honor —

Felix Frankfurter:

That’s to close my analysis.

Edward Mosk:

If I may, I think that by the time, perhaps I have concluded my remarks.

I may have been able to tie it up so that you will see a little more clearly what — at least as we see it, how the two are tied up.

But basically of course, we’re here on basically —

Felix Frankfurter:

I just like you to know why I think this.

For decades some of us fought against this Court declaring stuff unconstitutional on vague general grounds and that’s the law of human rights, the spirit of the Constitution and I think the objection to that law of applying the Constitution applies to every provision of the Constitution.

Edward Mosk:

Now —

Hugo L. Black:

I hope you in your time discuss the First Amendment.

Edward Mosk:

I shall indeed, Your Honor.

Now, we — I think that that probably gives a fair appraisal of the facts that we have before this Court.

And I think basically all of the facts that are essential to a determination.

Harold Burton:

But before your complete reaction, I — I understand that the answer as to whether or not but refusing to say whether he’s a member of the Communist Party.

Edward Mosk:

That is correct.

Harold Burton:

So, the only part of the record clearly a desire not to say whether he was a member of the Communist Party.

Edward Mosk:

It is a little more than that I think from the record, Your Honor.

At a subsequent hearing, when he was questioned, why do you answer one question and not the other?

He indicated that that subsequent hearing that he felt that perhaps he had violated his principles in even answering the philosophical question, and if he were asked it again he would decline on the same basis.

Harold Burton:

But actually he did answer.

Edward Mosk:

Actually, he did answer the —

Harold Burton:

He answered that he was opposed to force and violence.

Edward Mosk:

That is correct.

Harold Burton:

And he refused to — to say whether or not he was or had been a member of the Communist Party, is that correct?

Edward Mosk:

That — that is correct.

Harold Burton:

And that was on the basis of the findings as to the First Amendment.

Edward Mosk:

That is correct and high moral principle that he also indicated.

Harold Burton:

Well, his moral principle was (Inaudible)

Edward Mosk:

Well, his — his moral principle was —

Harold Burton:

He has to have a constitutional protection.

Edward Mosk:

That’s correct.

Harold Burton:

And in behalf of answering the first (Inaudible) in answer to questions, did he (Inaudible) other than that.

Edward Mosk:

The — as we see it, the burden is on him to answer any questions that go directly to his fitness to practice law.

It is our position that several — we have several answers to this particular question.

One is that whether or not he was a member of the Communist had — Communist Party or no relationship to the type of things which are important for the — for the practice of law.

Harold Burton:

Well, I think it’s whether he was in favor of overthrowing the Government by force and violence and that’s the basis for his moral character?

Edward Mosk:

Well, now you see —

Harold Burton:

(Voice Overlap) —

Edward Mosk:

There, we — he has responded to the questions on force and violence.

Harold Burton:

Yes, he responded to that.

Edward Mosk:

That’s correct.

Harold Burton:

Now, some people may think a Communist Party (Inaudible)

Edward Mosk:

Right.

Now, on that Your Honor, the second question asked after the first question has been asked and answered, avails the questioner nothing.

The cases before this Court and apparently respondent pretty much concedes that simple Communist Party membership without scienter would not be sufficient to base their decision.

So that having gone backwards from the second question, that is, “I do not believe my whole lifetime indicates that I do not believe it,” and even more than that.

This record discloses one of the articles introduced by the respondent here written before any of the events that are involved in this case indicated that he wrote them.

That he did not believe in force and violence, that anyone who did believe in force and violence should be punished for it.

So that in the state of this record indicating the denial, indicating additional affirmative proof, indicating letters from persons in high positions, indicating despite the respondent’s statement that if they don’t go to the issue, the letters for instance from his law school professors went to this issue.

Harold Burton:

(Inaudible) suppose those are all matters apart from what I’m asking.

I’m trying to find how far this man going up (Inaudible) and so forth answered the questions that were asked and you make him respond to the question, “Are you in favor of force and violence to overthrow the Government?”

Edward Mosk:

I am saying, yes.

Harold Burton:

He did?

Edward Mosk:

Yes, he did.

Harold Burton:

Now, that he is — you say he’s not required to answer the question on this Court.

Edward Mosk:

That is — that is correct, Your Honor.

Harold Burton:

All the theory I suppose, that is a case (Inaudible) —

Edward Mosk:

Well —

Harold Burton:

— (Inaudible) to force and violence.

Edward Mosk:

If —

Harold Burton:

Some people might think that some (Inaudible) that he gives more opportunities to go into the membership (Inaudible)

That’s what you objected to.

Edward Mosk:

If I may, perhaps a little extended but I — this is certainly a major point.

I recognize that we must respond to it, if I may then at this time respond directly to that.

Harold Burton:

(Inaudible) to the factual question, I’m just trying to get the first one.

Whether or not he must respond to each question, he says, “Unless for constitutional reasons to keep from answering.”

Edward Mosk:

I would say not, Your Honor, that —

Harold Burton:

(Inaudible)

Edward Mosk:

If — if it is pertinent to the questions which relate specifically to the practice of law, and there’s some doubt in my mind, Your Honor.

Harold Burton:

(Inaudible)

Edward Mosk:

Well, I was just going to say —

Felix Frankfurter:

(Inaudible) why do you make that concession?

Why must a man be forced to tell his secret thoughts about whatever the hardships and pain in Court that an occasion of bloodletting if I may quote Jefferson, is a good thing in view of the advantages that may come.

Why must he disclose that private thought?

Edward Mosk:

Well, I — I am not — I did not mean to concede that when it comes to ideas into anywhere in the realm of opinions and ideas —

Felix Frankfurter:

Do that put — that put this — consists on the fact that he did answer the question or did assert that he does not believe in force and violence.

Why if you are right in that to be forced, why must we ask that question?

Edward Mosk:

If the facts in this case were other than they are I might very well be arguing before this Court that this would be improper.

The facts that I have before me Your Honor, is that he did respond to this question.

Therefore, I do not think that we are called upon on the facts of this case to challenge the constitutionality of that statute.

I’ve been trying to think that the statute itself is improper.

But under the facts that we have here, we’re not called upon to challenge that.

Felix Frankfurter:

But in calling your stand to that question, would he draw the line if — whether he was a member of the Communist Party.

Edward Mosk:

That is correct, because that — that would avail him nothing.

It adds nothing.

They — immediately, they asked him that question.

If you were to answer the question, the next one would be in order to have any meaning to them, are you a member of the Communist Party who believes in force and violence, but they’ve already had the answer to that question.

So, they would avail of nothing to take from that — to ask this question.

They’re not bound by his answer.

Edward Mosk:

Of course they’re not bound by —

Felix Frankfurter:

Do you mean to cross-examine the witness also and it were in conjunction with the first answer?

Edward Mosk:

That’s correct.

And what we have here, Your Honor, if I may say is we’re dealing with an entirely different area than I think this Court has had to deal with before.

And I think perhaps this — in line with these questions, I should so indicate, we’re not dealing with the public employee here.

We’re not dealing even with a teacher as important as the independence of a teacher is concerned.

We’re not dealing with a private employee here.

We’re not dealing with an army officer as this Court has had to deal in general related cases before.

We’re dealing here with a free and independent bar.

We’re dealing here with a — with the — a institution, the law of a legal profession which is absolutely unique in our society.

We’re dealing here with the only group within our society which must remain absolutely free and independent of — of the kinds of restraint that we find, unfortunately required in some of these areas, because it’s only the lawyer who must stand between the individual and society, who stands between society and the individual who protects society from the individual.

But at the same time, it must be the lawyer who must protect the individual against his society.

Felix Frankfurter:

He is outside the society.

Edward Mosk:

He is not out —

Felix Frankfurter:

He does not stand outside the society and he had relations that amongst — my point of view, the most indispensable aspect that he in — a part of society, namely, the judicial system.

Edward Mosk:

That’s correct.

Felix Frankfurter:

The court systems, the administration of law.

Edward Mosk:

That’s correct, that’s correct.

But —

Felix Frankfurter:

You don’t answer me to what gain, I do not see why you emphasize that — that whatever may be full of teachers and policemen and plumbers is not applicable to lawyers.

Edward Mosk:

Let me — let me hasten to add that I’m not — I’m not conceding that they’re propriety of — of going into these areas for teachers.

But I say that there is a strong distinction because the lawyer from the very beginning, when you try and select who are going to become lawyers, you must not at the very beginning crush out the selection of a complete cross section of everyone who meets the other requirements for the practice of law.

But if the State of California as it has endeavored to do in this case say, “We will select one from another,” and this is the word that they used in their own brief.

We have the right.

The State of California has the right to select who shall be lawyers in the State of California.

And I say that as soon as you allow the State of California to select one from another on the basis that they have tried to do here, that is on the basis of disagreement and basically, that’s what they have done here on the basis of disagreement with the opinions, the ideas expressed by this petitioner.

This is the basis —

Harold Burton:

Well, what is on moral character?

Edward Mosk:

They have —

Harold Burton:

A lawyer to use — do you say that the bar (Inaudible)

Edward Mosk:

I would say that moral character Your Honor does not involve one’s political views.

Harold Burton:

That — that may be but his moral character does involve (Inaudible) in the practice of law.

Edward Mosk:

Oh, yes, no question about that and we do not challenge, except as applied in this case.

And as applied in this case, we say it’s arbitrary a violation of Fourteenth Amendment, but the term moral character as it has always been interpreted in the past in California up to this case was that if a person had violated some statute, if they had — if the person was — had been involved in a fraud, the person had fraudulently made his application.

Things in this area are properly and we do not question their right to term moral character based on these things.

But what they are doing now for the first time is saying, but moral character means something else.

We don’t agree with these articles.

As a matter of fact, they say the majority of the people don’t agree with these articles and that may well be.

But I submit that the mere fact that the majority of the people in the State do not agree with one’s ideas is not a basis for saying that he is not a person of good moral character, given the kind of record that we have here.

And I hasten —

Felix Frankfurter:

He’s not that — I think it’s extraordinary.

Edward Mosk:

I hasten to add that because we must approach this case from the — from the nature of the record here.

Fortunately, for this petitioner, he was not in the same position of the ordinary young man of the 22, 23 or 24 years old who comes before the Committee of Bar Examiners with a — with a clean slate.

He’s had no work record.

He’s had no opportunity to establish a general reputation in a record in the community.

But this petitioner was a man of 42 by the time he arrived at where we are today.

And in that basis, he had many years.

He had been a social worker in several cities.

Nowhere in this record is there any challenge to the substantial reputation and record of good moral character that this man had build up save only the four things that the respondent here brings out.

Save only the — their allegation of membership in the Communist Party 15 years earlier.

Hugo L. Black:

Is it illegal in California to belong in the Communist Party?

Edward Mosk:

It was not, sir.

That, as a matter of fact —

Hugo L. Black:

(Voice Overlap) was a crime (Inaudible)

Do you have any right under your statute making it incorporated in his rights?

Edward Mosk:

As a matter of fact, at that time Your Honor, we’re operating under the peak decision in California which was — was directly to the contrary.

There was a decision on the State Supreme Court.

Hugo L. Black:

To what effect?

Edward Mosk:

To the effect that the Communist Party was a legal party in the State of California.

Hugo L. Black:

Did they vote in it?

Edward Mosk:

I’m sorry.

Hugo L. Black:

Did the people vote in it at that time?

Edward Mosk:

They —

Hugo L. Black:

Did they allow them to have — to be on the ticket?

Edward Mosk:

Of course in 1942, the Communist Party was on the ballot in California.

It was perfectly legal.

There was no challenge in that effect.

It was during the war just before the war years when it was — it was common — it was a common place thing in California.

This has been indicated by the facts since then.

Hugo L. Black:

Did he run his office on — you said he ran for office a few times.

Did he run on that ticket?

Edward Mosk:

Oh, no, no, sir.

He ran under democratic ticket, and that was many years subsequent.

Hugo L. Black:

They have a ticket as to that time, the Communist?

Edward Mosk:

There was a Communist — you mean in the year when he ran?

Hugo L. Black:

When he was running.

Edward Mosk:

I would doubt very much whether at that time, although I’m not certain of the fact on that.

However, in 1942, there’s no question if they were.

Hugo L. Black:

Has it been made illegal or a crime to belong to the Communist Party at that time?

Edward Mosk:

Not in the State of California, it has not, sir.

Could I ask you this question?

Edward Mosk:

Of course.

The premise of your position is that he answered the question as to whether he was a Communist or in a philosophical sense and he said no.

Now, supposing he’d answered this question as to whether he was a member of the Communist Party and his answer to it showed that he was an officer of the Communist Party and a member of it, and that he had not stated truth to the Committee when he had first — when he had first said that he was not a philosophical Communist.

Could the Committee take that into account as a reason for not admitting him?

Edward Mosk:

But the — the factual situation that you’re setting up, Your Honor, would have called for the respondent to have gone forward in some manner with the evidence.

Well, they’ve put on —

Edward Mosk:

You see —

— Mrs. Bennett —

Edward Mosk:

I’m sorry.

They’ve put on Mrs. Bennett.

Edward Mosk:

That’s correct.

And Mrs. Bennett’s testimony as far as this record is concerned is in effect a — a shell.

It says, you are — he was a member of this group and nothing that anybody said there was some reference to all.

Well it was implicit but of course this is a — is a mere conclusion of the — of the witness where she makes the — the generality that it was implicit that bad things went on.

What I’m puzzled about is whether he said at page 38, Mr. Sterling, a member of the Committee.

This is all in relation as to why he balks at answering the question, “Are you a member of the Communist Party?”

And Mr. Sterling asked, “If you are afraid if you answer the question as to membership in the Communist Party the negative and say, “No, I am not a member and I have never been.”

Assuming you made that answer, you were afraid that we could find half a dozen people who would say that you were — were and have been and therefore you were — if you were on a perjury trial and the jury believed them and not you, you’ve committed perjury.

And his answer was, “I’m saying no matter what answer I have, whether I was or wasn’t then, definitely, there would be several whom you could get to say the opposite and as I said before.”

Then Mr. Sterling and the judge subjecting him to a perjury trial and the witness answer yes.

Edward Mosk:

Yes.

I — I say I’m aware that on the — the very first occasion in the first colloquy between the Committee and Mr. Konigsberg at a time when he was there without counsel, if you recall he had been called in without any knowledge of why he was been there and he was without counsel at that time.

However, even at the same hearing and — and still without counsel, I called Your Honors attention on — on page 30 or starting right at the bottom of 29.

I understand that under the law as it is today, you may ask me specifically, “Do I advocate the overthrow of the Government by force and violence?”

I specifically answer, “I do not.

I never did or never will.”

When you get into the other question of specific views in a political party, it seems to me only the fact the right of political opinion is protected under the First Amendment and is binding on the States.

And then over on the next page on 31, again the question, in other words, you feel that asking you that question is a violation of your constitutional rights.

Answer “Of free opinion, free speech, yes.”

And then he goes on.

So that it is true that — that at the very beginning there perhaps was some mixture of — of discussion about nameless informers and so forth.

But basically, if — if you read the entire record, it’s basic to what he has said that while he did mixed in this other argument in every occasion, he said this is predicated on — on the First Amendment.

And certainly, after the first hearing, there were no other reference as I think after the first hearing.

Well, how about this, on page 117, which is the second hearing?

Mr. Frodo is a member of the Committee.

You refused to affirm or deny our testimony.

That’s the testimony —

Edward Mosk:

132, sir?

117.

Edward Mosk:

Oh, 117.

I’m sorry.

And under the page, “Mr. Frodo, you refused to affirm or deny our testimony,” that means Mrs. Bennett’s testimony.

Mr. Konigsberg, “The Committee is not empowered to ask with regard to political affiliations to that type.”

Edward Mosk:

That’s correct.

I think that it’s — it’s simply a paraphrase of what he had said before.

But I think that Your Honor will find that it was only at the first hearing, the very first hearing that these other element of — of nameless informers was intruded into it.

And even then, it was almost always in juxtaposition of saying, “Well, how do I know how many people you’re going to bring or going to say something else.”

But in addition, in almost every case, he said however it’s protected under the First Amendment.

So that there is this slight other element but it’s — it’s only in connection with the — what he referred to constantly as his First Amendment position.

Harold Burton:

All right, just on — I’m a little over (Inaudible) just to your position in regard to the obligation of petitioner to make the implied questions that have no constitutional effect.

Edward Mosk:

It is —

Harold Burton:

Why do you believe or would you — what do you obtain in that.

Would — would you be willing to engage in the overthrow of the Government by force and violence?

Now, is that a substantive question to ask?

Edward Mosk:

Well —

Harold Burton:

Does he — does he have to answer that question?

Because they’re trying to remember — is it like the prosecution in which the prosecuting officers must develop all the evidence and bring it forth and the defendant may refuse to testify at all, is that your position?

Edward Mosk:

No.

Let me answer that this way.

The specific question places a somewhat difficult burden because I say under this record, we are not challenging it.

Harold Burton:

And that has nothing to do.

Edward Mosk:

No.

Harold Burton:

I’m asking you a question whether in further to draw this man to answer, or is he protected by criminal defense?

Edward Mosk:

Oh, well, obviously, he’s protected but there still is a burden and we do not —

Harold Burton:

Then he must answer some questions.

Edward Mosk:

He must answer some questions.

Now —

Harold Burton:

Questions that are pertinent to his moral character?

Edward Mosk:

That is correct.

Edward Mosk:

That questions that are pertinent to his moral —

Harold Burton:

He could be — he could be asked whether he’s ever been in the penitentiary.

Edward Mosk:

I would say so.

Assuming also, Your Honor, I — I would raise some question as to the right to simply go on a fishing expedition, because the mere fact that the person is coming before this Committee asking to be a lawyer —

Harold Burton:

The information that of his name was (Inaudible)

Edward Mosk:

Then he would certainly be called upon to respond and say, “This was not me or if it was me, here are the circumstances.”

Harold Burton:

And — and as to his — overthrow of the Government by force and violence you think, he didn’t have to answer.

I’ve decided the word (Inaudible)

Edward Mosk:

It — it would be my opinion, Your Honor that if the facts in this case were otherwise, and this were the question that was before you, I would argue that here again, we’re in the area of belief but this would certainly be a closer question that we have here.

I — I would question whether a question inquiring into his beliefs of this sort would be a proper question.

But as I say, we’re not based with that here.

Felix Frankfurter:

Mr. Mosk, suppose —

Harold Burton:

What if — I beg your pardon.

What was this — his action on the subject (Inaudible)

Edward Mosk:

That’s correct.

Harold Burton:

That’s his association?

Edward Mosk:

His associations —

Harold Burton:

To find out whether he was (Inaudible) or a criminal.

Edward Mosk:

If the — if there were — if there were facts which indicated a participation in some criminal activities then perhaps you could go into this.

But again, it’s the — it’s the criminal activities that you’re going to and not the association.

Harold Burton:

(Inaudible)

Edward Mosk:

There — yes, but I hastened again to add that it is the robbing of the train that is the important thing and not the association.

Harold Burton:

And not the conspiracy?

Edward Mosk:

If having developed the evidence of — of the conspiracy to rob the train and there was evidence that he was one of the conspirators to rob the train then perhaps you come over the hall and say, “All right, well now, is this you?”

But in the — in our situation, the ultimate question that is the — the wrongdoing about the Communist Party, he has already answered.

And simply asking him the question, “Well, now, were you a member,” would add them nothing because they have to go right back to the other question again unless they had some additional evidence which obviously they did not have and did not come forward with.

Felix Frankfurter:

Mr. Mosk —

Edward Mosk:

Yes, sir?

Felix Frankfurter:

— suppose this situation and I’d like to put on one side but I don’t suppose it’s an assumption of yours that only crime he commits penally violates the penal statute that’s involved (Inaudible)

Edward Mosk:

I’m not that restrictive in it.

Felix Frankfurter:

No, but if we talk about crime, that’s —

Edward Mosk:

It’s an easy way of saying it but I think it’s not —

Felix Frankfurter:

If you think dozens of questions would be higher than it is, but isn’t that —

Edward Mosk:

No, it is not, sir, and we do not — we do not for a moment suggest the lowering of the standards of profession.

Felix Frankfurter:

I suppose — the question I want to put you is this.

Suppose a member of this Committee after he said he’s not a philosophical Communist, I don’t know what that means.

Why he should be ready to say that, not rather say some other things (Inaudible)

Edward Mosk:

I — I could not answer that one either, Your Honor.

Felix Frankfurter:

No, no.

I’m not asking.

But suppose after he said he was not a philosophical Communist, (Inaudible) that’s apparent.

And suppose this woman, this witness before the Committee then — perhaps I should (Inaudible)

Suppose the member of the Committee doesn’t affect the problem that you can express, you said that you’re not a philosophical Communist.

So far as I am concerned, I do not think membership in the Communist Party as in the Court would be a barred admission.

We don’t have to rest on the decisions of each case by the Supreme Court but that is my view, at least being provided.

But this lady before us the other day said you were a member and active in a cell on which she then was a (Inaudible)

I’m not suggesting on the facts (Inaudible)

And this member of the Committee says, “I want to make it perfectly clear to you (Inaudible)”

“Yes, I was a member of the Communist Party.”

I, for one do not think that’s a bar and I think it’s illegal.

But I do realize the right and find out from you whether you’re telling the truth, of course.

And I should like to determine whether this lady is truthful or not with what she said if he was a remember of this cell, because if she’s right about that and I’d like to ask you more questions about your — this claim of not being a philosophical Communist.

Do I make clear my question?

Edward Mosk:

Yes, your —

Felix Frankfurter:

Now, if the District Attorney says, “Your Honor, you’re including a problem, unconstitutionally protected territory and I want to inquire.”

Edward Mosk:

Well —

Felix Frankfurter:

(Inaudible)

Edward Mosk:

And I — I perhaps could fallback, Your Honor, on the — on Mr. Konigsberg’s own answer in a sense to that.

Felix Frankfurter:

Well, I added to that.

Before I make an admission, I know there are other members on the Committee but this questioner stated that his search for evidence was not to bar him because of Communist connection or affiliation or sympathy but that is the lawyer given the right to ascertain whether this is the truth telling a person.

Edward Mosk:

Right.

Well, in a sense, we’ve come to — to part to the vice in — in having answered this question.

You see, Mr. Konigsberg himself at a subsequent hearing said, “I was wrong in answering this question because I realized that in a sense, I have reached the principle that I have always lived in but under the stress of a hearing, I answered the question.”

And I think in a sense this is the — is the vice that we have here.

He should not have answered that question either and it’s only because he did that we get into the position of perhaps having to say, “Well, we can prove the truth of a belief.”

I — I would submit to Your Honor —

Felix Frankfurter:

I don’t — I dislike the abstract requirements on what ought to be complete doctrine.

If you say you can’t inquire and led you to believe a person, cut off all the right, all the analysis are for.

There must have been continued inquiry.

I don’t understand what the question is, its pertinency, the context in which you’ve asked, etcetera, etcetera.

Edward Mosk:

That — that’s correct and I — I would agree with that 100%.

As a matter for that — that is the very burden of our position here that — that we’re not dealing with teachers.

We’re not dealing with —

Felix Frankfurter:

I’d — I’d like to interrupt on teachers.

Maybe it’s my occupational prejudice but I hold an opinion some years ago which I thought that freedom ought to be most respected, at least with much respect in regard to teachers being a part of the community.

Edward Mosk:

I —

Felix Frankfurter:

You have to try that in this Court.

This notion that you put teachers in a classroom could be (Inaudible) and should be treated more roughly and more restrictedly than lawyers, I should like (Inaudible)

Edward Mosk:

Un — unfortunately, Your —

Felix Frankfurter:

But I surely have said that.

Edward Mosk:

Well, unfortunately, Your Honor, if this Court could replace them in — in this position with relation to my case rather than — than my so stating.

Felix Frankfurter:

I’ve said that because teachers, if they’ve got narrow speaking (Inaudible)

Edward Mosk:

No, but Your Honor, in — in the one case balancing off the — the equities of the situation, this Court has decided that there can be certain — what I would consider to be intrusions into the — the —

Felix Frankfurter:

It’s not because they were teachers.

I’m speaking for myself.

I answered some remarks on this Circuit to the effect the position that a teacher has.

Edward Mosk:

Well —

Felix Frankfurter:

I wouldn’t say that this adds more just to lawyers — to lawyers but I would have had to say lawyers had immunity that teachers have.

Edward Mosk:

Well, this — this of course is — maybe where — where I would somewhat hard company with Your Honor because I — I would submit to this Court that there is no profession and this is not to in any way suggest that inquiries are necessarily proper in the case of other professions.

But I say that if there is anywhere in our society, if there is any area in our society where we say we must protect that area against the type of selection which this respondent here has endeavored to make based not on the worth of the person, not on a record —

Felix Frankfurter:

Regretting the question when you say not basing that on the words of the —

Edward Mosk:

Except —

Felix Frankfurter:

Suppose that such is the truth of it is an assertion to his — into his words.

Edward Mosk:

Well, if — if it please the Court, searching for the truth telling on —

Felix Frankfurter:

That could be an admissible binding inquiry before a man is admitted to the Bar.

Edward Mosk:

True.

Felix Frankfurter:

I would think lawyers and priests and doctors ascertained from them is exacted — from them exacted the habit of truth by as much as anybody who has anything in this society.

I would not accept teachers for that because I do not think there’s any profession more important than the profession of training the next generation.

Edward Mosk:

But the question that — that Your Honor has asked, I don’t believe that the next questions would have any way of going to whether he is telling the truth when he says he’s not a philosophical Communist.

This is the vice with — with inquiry into this area because no one under any circumstances could ever determine whether he was telling the truth.

Felix Frankfurter:

Suppose — suppose the witness draws before this Committee.

I’m asking these questions because in all cases, the worth of evidence in case of following through implications not only on the most obvious and so-called freedom, but also in the relations of the reviewing parties brought into state action with admission to the Bar.

Suppose the witness came before the — this Committee and said, “The candidate told me yesterday that he’s going to refuse to answer any of the questions because if he answers them truthfully, he is getting the difficulties and of course doesn’t want to subject himself to perjury.” Suppose a witness came before that Committee and the Committee — a member of the Committee then — Mr. Konigsberg, you heard, you were present, Mrs. Williams, Mrs. Jacobs or Mr. Frank (Voice Overlap) —

Edward Mosk:

Cannot —

Felix Frankfurter:

— might have testified to that.

Did you or did you not say that (Inaudible)

Could you atleast answer that question?

Edward Mosk:

I suppose there would be questions of relevancy involved, Your Honor, as to whether it was a relevant to the actual issues that are involved here.

But I would be inclined to say that if the — that if we’re in an area which bears no relationship other than truth or falsity of an individual question, but if that truth or falsity as to the individual question is going to take us in to determination with relation to beliefs, I would have reservations about it.

It — the thing that I am concerned with —

Felix Frankfurter:

This question has to be dealt with as a question.

If you can’t say you don’t, you can’t answer this although the proper question, “Are you constitutionally not protected because the question may then cover up an improper question?”

You can’t upset the state judge on that kind of reading.

Edward Mosk:

Well, except this that if the entire area in which they’re dealing —

Felix Frankfurter:

That’s my difficulty.

I don’t know what the — I don’t know what that means.

Edward Mosk:

Well, let me —

Felix Frankfurter:

The Constitution doesn’t talk about (Inaudible) —

Edward Mosk:

Let me — let me —

Felix Frankfurter:

— only on specific things.

Edward Mosk:

Let me give an example and by a specific thing that we have in this record.

A respondent in this record apparently recognizing that simple membership alone would not have been sufficient and they — they go back and forth on this issue.

On one place, they say yes, another place they say no, have decided that they must in some way and this record show that he really does believe in force and violence.

So, in order to establish this, they seek through these articles that they’ve introduced and they’ve read them through and called them through.

And what did they come up with in order to prove that this petitioner believes in force and violence, they come up with a statement that reads substantially like this.

They say petitioner wrote in this article that everyone should militantly defend the principles of the Constitution of the United States.

And then they put in quite parenthetically.

They say, “Militant means forceful, warlike.

Therefore, he believes in force and violence.”

Now, this is what happens as soon — and by ways of specific examples — this is exactly what is going to happen as soon as we penetrate into this area of “what do you think” and “what does this article mean” and “who were your associations.”

We’ll come up with this kind of — of article which they have said now in this record before this Court this proves that this man or it — they don’t say proofs.

I’m sorry.

They say this indicates that perhaps he really does believe in force and violence.

And this is exactly what happens not only in the articles, but it’s also going to happen as soon as we start intruding into and I — I hope I’m not being too general, but into the area of what a person thinks in the political area, in the realm of — of political ideas where what this generation says is correct and true and — and right.

Perhaps, 10 years from now, someone else will say no and this petitioner can’t wait 10 years to be admitted to the Bar.

It seems to me that in the case of the — of the applicant for admission to the Bar, he has established on this record his good moral character by every standard which we have known in the past, save the one that they — that the respondent here is endeavoring to bring in and that is he has refused to answer these couple of questions, these few questions and sometime in the past without more, he was, they alleged a member of the Communist Party.

So that — it seems to me that what we are dealing with this is — is an entire record.

Maybe this case would be different if we had a 23-year old boy asked some of these questions, I think not.

But we have a record here which is overwhelming in its proof of this man’s good moral character.

Every sign in this record points to his good moral character, except these intrusions into this — this area.

And it submit — it seems to me that given this record to hold that this man on the basis of this — his failure to answer these few questions and this — the other points that they have raised, it becomes an arbitrary determination and contrary to the Fourteenth Amendment.

Now, I had hoped to hold a few minutes, I think I have about five and I would like at this time to — to reserve that.

Earl Warren:

Mr. Belcher.

Frank B. Belcher:

May it please the Court.

In the order of this Court granting certiorari which appears at page 133 of the record, the Court directed to counsel three questions touching upon the jurisdiction of this Court to hear this matter and asked that we comment upon them not only in briefs but in oral argument.

Paraphrasing these questions, the first were, were petitioners constitutional claims raised before the Supreme Court of California?

The second question was, was the Supreme Court of California’s denial of the petition for a writ of review, a final judgment within the meaning of 28 U.S. Code 1257?

And the third question was, if a final question, was it a rejection of petitioner’s claims under the Fourteenth Amendment?

Answering those questions, I would say that in my judgment, the answer to the second question is yes, that the rejection by the Supreme Court of California of this petition for a writ of review was a final judgment sufficient for the purpose of giving this Court jurisdiction in that respect.

Answering however the first and the third questions, my answer to this Court is no to each of them.

Frank B. Belcher:

I hold here petitioner’s plea which was filed before the Supreme Court of California.

And I say to this Court that there is not one heading, one paragraph, one sentence or one phrase or a single authority which raises the constitutional questions before the Supreme Court of California which they attempt to place before this Court.

It has then a rule —

Is that brief on our files?

Frank B. Belcher:

It was — this situation exist Mr. Justice with reference to the brief.

Yes, sir.

It was certified to this Court by the Supreme Court of California.

A request was made by the petitioner here that it be included in the record.

It however was not so included, but we have been advised by the clerk.

I assume the Court is not necessarily bound by the clerk that we have the right to advert to it in argument.

Well, was any of that, is it — is it — is it available to us?

Frank B. Belcher:

Yes, sir.

It is on file here.

That’s what I want to know.

Frank B. Belcher:

It’s certified here by the Supreme Court of California.

(Inaudible)

Frank B. Belcher:

I say sir that he did not raise the questions in the brief.

Now, they were specified in the petition as such.

Did you raise that?

Frank B. Belcher:

The petition sets them forth pro forma, yes sir, but there is not one —

Felix Frankfurter:

(Inaudible) pro forma you’re suggesting.

Frank B. Belcher:

They are merely recited as one of the grounds upon which they are petitioning for a writ of review.

Felix Frankfurter:

Pro forma (Voice Overlap) —

Frank B. Belcher:

The petition is something —

Felix Frankfurter:

Before your Supreme Court.

Frank B. Belcher:

Yes, sir.

Felix Frankfurter:

And that’s the Court of origination, isn’t it?

Frank B. Belcher:

Yes, sir.

Felix Frankfurter:

To this kind of a case.

Frank B. Belcher:

Yes, sir.

Felix Frankfurter:

Well then, why wasn’t — why isn’t that raising the question?

Frank B. Belcher:

Because our Court has held and has held many, many times that points which are not argued in the brief do not have to be considered by the Court and are deemed waived.

That —

Hugo L. Black:

(Inaudible)

Frank B. Belcher:

I beg your pardon, sir.

Hugo L. Black:

Of this kind of a case?

Frank B. Belcher:

Yes, sir.

Now, in count — in the brief of the — the counsel for petitioner, he says that that rule only apply in cases of appeal and not in cases where the Supreme Court of California has the original jurisdiction.

But in making that Statement, he overlooks the case of Johnson against State Bar in our 4 Cal.2d which is cited in our brief which was a petition for review addressed to the State Bar of California before the Supreme Court of California and in which they attempted to raise a constitutional question.

And in that case, the Supreme Court of California again said that if you don’t raise these questions in your brief, if you don’t argue and if you don’t cite available authorities, then we do not have to know this.

Hugo L. Black:

(Inaudible)

Frank B. Belcher:

In the Johnson case?

Hugo L. Black:

To this man.

Frank B. Belcher:

That sir I cannot answer because they denied it without opinion.

They denied it by a 4-to-3 vote.

However, I do not think that the three negative votes should be construed as a favor of granting a petition.

I think it was possibly because they thought an opinion should be written.

Hugo L. Black:

Did you say — did you say the brief waives this point in state courts?

Frank B. Belcher:

I didn’t understand your question, sir.

Hugo L. Black:

In a state court — a state court, when (Inaudible) and they raise the point that he will not (Inaudible) sentence this point for consideration.

Frank B. Belcher:

No, sir, because they did not tender it.

The State Bar did —

Hugo L. Black:

(Inaudible) it was tendered in the petition?

Frank B. Belcher:

Yes, but not argued in the pleas and the State Bar only paid attention to the matters which were raised in the brief.

Felix Frankfurter:

Would you take two minutes?

You don’t have to take more to the same point that Mr. Mosk (Inaudible) to the Supreme Court to California, is that in your brief.

Frank B. Belcher:

Yes, sir.

Felix Frankfurter:

What was the point?

What was the basis on which in the Supreme Court of California, the present petitioner sought to overturn or deny admission?

Frank B. Belcher:

All right, sir.

Felix Frankfurter:

What was the legal point —

Frank B. Belcher:

Paragraph —

Felix Frankfurter:

— on which they claim the Bar Association committed error?

Frank B. Belcher:

I could do that perfectly by quoting his topical index, point 4.

Applicant has sustained his burden of proof and established his good moral character, (a) petitioner fulfilled all requirements of the Committee, (b) the applicant established by letter and other documentary proof his good moral character, (c) the record contains no evidence of bad moral character within the meaning of Section 6060 (c), (d) the respondent cannot base its denial of admission upon the fact that this petitioner declined to answer certain questions.

Point 5, the applicant does not believe in force and violence, (a) the Committee heard in placing the burden of proof upon the applicant to show compliance within the provision of Section 6064.1 and, (b) the applicant affirmatively established his antipathy to the doctrine of force and violence.

Felix Frankfurter:

Not under the (Inaudible) just before you go to five, the (Inaudible) —

Frank B. Belcher:

(d) the respondent cannot base its denial of admission upon the fact that this petitioner declined to answer questions.

Felix Frankfurter:

Now, is there anything under (d) that would indicate that the issue would be demonstrated here or a contention raised.

I don’t mean in common words an infringement.

Frank B. Belcher:

No, sir.

Felix Frankfurter:

But one would have to leave it on that.

Frank B. Belcher:

Yes, sir.

And there was —

Hugo L. Black:

(Inaudible)

Frank B. Belcher:

That’s right, sir.

Hugo L. Black:

(Inaudible)

Frank B. Belcher:

Yes, sir.

Hugo L. Black:

(Inaudible)

Frank B. Belcher:

I beg your pardon?

William O. Douglas:

In the point argued.

Frank B. Belcher:

Not in petitioner’s brief.

That is what I am referring to.

William O. Douglas:

That’s what he’s referring to.

Frank B. Belcher:

And the Supreme —

William O. Douglas:

It is required and he’s referring to 11 pages of his brief before the Supreme Court where he says this person has (Inaudible)

Frank B. Belcher:

Yes, but it has been repeatedly held by our Supreme Court time without number.

William O. Douglas:

(Inaudible)

Frank B. Belcher:

That it has to be raised initially or it has been deemed waived.

And I submit that —

(Inaudible)

Frank B. Belcher:

I beg your pardon, sir.

Hugo L. Black:

It was raised in (Inaudible)

Are you talking about the (Inaudible)

And then you say that the Court has held no statement (Inaudible) because they do not argue them because they waive them.

Frank B. Belcher:

That’s right, sir.

Hugo L. Black:

And that’s your own rule.

Frank B. Belcher:

No, sir and that rule also is that it applies in a case of this kind which has taken initially to the Supreme Court in Johnson against the State Bar is the case which we cite is so old.

Felix Frankfurter:

Is this the situation you felt (Inaudible) that the very important couple of questions are here and I just want to know whether on this (Inaudible) of the case, this is a situation.

Do you contend that it’s the rule of the Supreme Court of California and therefore (Inaudible) although a statute in the Constitution (Inaudible) that it’s the rule of the Supreme Court of California that no matter how explicitly or elaborately, the federal constitutional question is raised in a petition or the plea unless it is argued in the initial brief (Inaudible) the petitioner in this case unless it is argued in a brief, it is deemed not to be before the Court, the Supreme Court.

Frank B. Belcher:

Yes, sir, and has —

Felix Frankfurter:

And what you said further that if we leave Mr. Mosk’s reading of the Supreme Court of California, we read the decisions of the Court of California on this point in your view there’d be no doubt left on (Inaudible) if that is so, is that it?

Frank B. Belcher:

That is correct, sir.

Felix Frankfurter:

I’m not suggesting to save a lot of time.

It was (Inaudible) — he was even able to read that, (Inaudible) if it’s a demonstrable qualification (Inaudible)

Hugo L. Black:

But I’d like to ask you one more question.

On page 5 of his brief, you said that in his brief he argued these things, I think in — in quotation mark.

You’re now referring to his brief —

Hugo L. Black:

Read it from page 5 of his reply brief.

You put these quotation marks.

I don’t know if that’s in the brief, applicant, this is closed.

The applicant disregarded the argument (Inaudible) on the condition.

The applicant denied that (Inaudible) on the grounds with conviction of constitutional rights according to the First Amendment of the Constitution.

And basically, we have believed the opinion (Inaudible) in violation of the rights under the First Amendment and that is here in the brief.

Frank B. Belcher:

May I inquire what brief you were —

The reply brief, the reply brief (Inaudible)

Frank B. Belcher:

Before this Court —

Yes, on this Court.

Frank B. Belcher:

— on page — on page 5.

Hugo L. Black:

On Page 5, he said that those are quotations from his brief, first brief before the Supreme Court of California on his petition.

Frank B. Belcher:

Yes, sir.

That is a correct quotation —

Hugo L. Black:

Suppose I didn’t read it.

Frank B. Belcher:

— which is in his brief purely by way of recital.

Again, I say without one word of argument and without a single constitutional authority of any kind or character and nature.

Felix Frankfurter:

What was the — what does the Johnson case say?

Frank B. Belcher:

I beg your pardon, sir?

Felix Frankfurter:

Does the Johnson case say you must express not less than five pages in argument at least taken.

Frank B. Belcher:

No, but it say you must at least raise the point, argue it and cite available authorities.

Harold Burton:

Suppose the record have said it.

Frank B. Belcher:

Well, there happens to be a wealth of them in this instance, sir, by this Court, the sights of —

Felix Frankfurter:

But wouldn’t you say — wouldn’t you say what was quoted on page 5 raises the point and maybe affected directly in the California judicature that defines raising a point in a very special way but now how did the lawyer raise the point and just by saying, “I refuse to answer this question because the First Amendment of the Federal Constitution made me privileged (Inaudible)”

Isn’t that raising it?

Frank B. Belcher:

I don’t think so, Your Honor, where the rule is that you’ve got to argue it and cite available authorities.

Earl Warren:

Mr. Belcher, I —

Frank B. Belcher:

Yes.

Earl Warren:

I understood that the applicable rules of the Supreme Court was difficult at the time of Johnson versus the State Bar and at that time, all that were required from you is to make an application for review.

And since that time, the rule was (Inaudible) that require both in the petition, (Inaudible) brief.

Frank B. Belcher:

Yes, but the Johnson case Your Honor, and the language in that decision relates to the briefs which were filed in.

Earl Warren:

Yes, but they didn’t require it.

They didn’t require it, but — but they do now.

All that’s required of them is an application, not — as to first time, as I understand it, it require both and the briefs, isn’t that (Inaudible)

Frank B. Belcher:

Well, frankly, I can’t say as to the requirements but I know that it was always the practice in these matters to submit a brief with your application.

Now, it is true that for many years, the Court out there entertained very informal petitions that did not have to be much more than a letter simply stating if we want the Court to review this.

But I have known of no relaxation in the requirements of that Court so far as the briefing is concerned.

I place that Court — that points simply before the Court because we were directed to argument.

Now, the petitioner in his briefs and in his arguments before this Court here has sought to show that this petitioner was denied admission or certification for admission in California because of his political, economic and social beliefs.

I say to this Court with all the conviction that I can muster that I think there is no foundation for that statement at all.

That the petitioner in this case was denied certification to the Supreme Court because he failed to establish his good moral character and because he left some considerable doubt as to how he stood on the matter of the use of force and violence in the overthrow of the Government.

Now, we have a specific statute on that score that no one maybe certified for evasion to practice law who advocates the overthrow of either the Federal or the State Government by force and violence or other constitutional means.

Frank B. Belcher:

That is the way the matter became a subject of inquiry before our Board of Bar Examiners.

Now, the Board of Bar Examiners made two findings and one of them was that this petitioner had not sustained the burden of proof as to his good moral character and that he had not let the statutory test — test of being one who could not advocate the overthrow of — the Government by force and violence.

And there was no finding that he was denied admission because of any of his social, economic or political beliefs.

Now, by statute, it became the duty of the Board of Bar Governors to make inquiry into these things, and that is exactly what they did in discharge of their duty.

Now, the report passes of evidence in all which were introduced into that hearing.

The first one had to deal with a transcript of a hearing in which this petitioner appeared before the so-called Tenney Committee which was a legislative Un-American Activities Committee in the State of California.

Now, at the time he appeared before that Committee as shown by transcript of the proceedings, he was asked and I quote.

“Have you ever been or are you now a member of the Communist Party?”

Now, Mr. — although he was directed three times in his appearance before the Tenney Committee to answer that question, he never did so.

And his answer was a long two or three-page garbled reply, the summoned substance of which was that he declined to answer the question.

Harold Burton:

(Inaudible)

Frank B. Belcher:

That he refused to answer the question.

Harold Burton:

He refused on the ground (Inaudible)

Frank B. Belcher:

Not standing alone, sir, but we say that that is a very significant indicia as bearing upon his good moral character or lack of it.

Harold Burton:

In other words, he refused to answer on the ground (Inaudible)

Frank B. Belcher:

He never adopted the Fifth Amendment specifically declined to do so.

Always upon the First Amendment, that he had a right to his religious, political and personal beliefs and that we had no right to inquire into them.

Hugo L. Black:

The Committee?

Frank B. Belcher:

That the Committee has no right to inquire into them, yes, sir.

Hugo L. Black:

Did he know (Inaudible)

Frank B. Belcher:

Absolutely, without the slightest question and this Court is so held as I shall presently point out.

Now, the next bit of evidence was the testimony of this Mrs. Bennett which has been referred to.

Now, Mrs. Bennett’s testimony left much to be desired that I can see her identification of this man was not all that you might wish.

But in the course of her testimony, she testified that it is implicit in the fact that one who is a Communist that one expected a forceful overthrow of the Government at some time.

Now, this respondent was present when Mrs. Bennett testified, and later on, when he was on the stand he was asked by a member of the Committee as follows and I’m now referring to page 117 of the brief of the record.

“Who?

A lady by the name of Bennett testified here.

You heard her testimony.

Is there any part of that testimony you wish to desire to deny?”

Mr. Konigsberg replied in part.

Frank B. Belcher:

“That is a question relating to opinions, beliefs, political affiliations.”

And again, he said, “The Committee is not empowered to ask with regard to political affiliations of that type.”

And in short, he may — he declined to make any more specific answer but no place, even no given repeated opportunities so to do that he ever denied one word of what Mrs. Bennett had testified to.

Now, in addition to that, they were introduced into the record here as counsel for petitioner has indicated some 27 articles which the petitioner had written for this newspaper called, The Eagle.

The petitioner himself later put in some 51 articles which as I recall included the 27, which the Committee had introduced.

Now, I’m going to refer to certain excerpts from those articles, not as an infringement upon this man’s freedom of the press or freedom of speech but for the purpose of showing certain characteristics in his line of thinking which furnished that I submit a reasonable foundation for later inquiry by the members of this Bar Examining Committee.

Felix Frankfurter:

What year were these articles (Inaudible) —

Frank B. Belcher:

1900, from July the 28th of 1950 to December of 1950, so far as the 27 put in by the Committee but extending over until May.

I believe it was of 1951 by — by the petitioner himself.

Now, I expect —

Felix Frankfurter:

1953 to what?

Frank B. Belcher:

1950 to 1951.

Felix Frankfurter:

No, the — the year in Court (Inaudible)

Frank B. Belcher:

No, that was —

Felix Frankfurter:

(Inaudible)

Frank B. Belcher:

Yes, sir.

Now, I expect to show by these articles a general trend along this line.One of the extreme criticism of the Government all the way from the local School Board, the local council to the highest offices in Washington, the second trend is an extreme sympathy —

Felix Frankfurter:

(Voice Overlap) —

Frank B. Belcher:

I beg your pardon, sir?

Felix Frankfurter:

How was that true?

Frank B. Belcher:

Has a right to do it.

No question about it and I concede it.

The second trend in these articles which he wrote shows his extreme sympathy with everyone who has some leaning towards the Communist doctrine and particularly with the Soviet Union and things that they do.

For instance, he wrote, “On freedom side or such good people as a Hollywood Ten, the (Inaudible), the Members of Progressive Party, the Joint Anti-Fascist Refugee Committee, the Paul Robeson’s and the Howard Fast’s.

On the other side are the giant corporations, the Mac Arthur’s, the Truman’s, the Mason’s, the American Legion, the Chamber of Commerce and practically all press, radio and movies.”

Again, he says, “A school system that is so deeply committed to the anti — anti-democratic conspiracies being enjoyed by the economic loyalists to whom they have sold out.

I criticize the Boards of Education, the Board of Supervisors, the Sheriff, the City Council.”

He called our defense forces a scoff army and he spoke up and again I quote, “Sons slaughtered on foreign fields to ensure greater profits for the Morgan’s and the Mac Arthur’s.”

He was severely critical of the Secretary of State, the Attorney General, called the President dishonest, spoke of him as Hydrogen Harry and referred to and again I quote, “His program for war and American fascism which Taft and his collaborators are helping Truman and his cronies to fasten on America.”

He wrote quote — and quoting again, “The nationalist theory and terror over communism, manufactured by the Taft-Truman axis to divide and deceive the American people.”

Frank B. Belcher:

Again, he also wrote of the intellectual dishonesty of certain Senators and he spoke to the leaders of our land as and again I quote, “Men without principles, without morals and without hopes.”

He wrote of American imperialism and he also wrote and again I quote, “The obscene cry of fighting communism.”

He charged the United States of these articles with aggression in Korea.

He demanded that we take our troops out of Korea.

He advocated joining the Soviet Union in rebuilding a democratic United Nations and world peace.

He wrote critically of the building of strings of bases around the Soviet Republic and he charged the United States of provoking China and with aggression in Korea.

He charged the United States with war against the people of Korea and spoke of it as being a criminal war.

He bemoaned and again I quote, “The jailing of the leaders of the Communist Party.”

He charged our Government who are trying the outlaw peace but he praised the Soviets as being the true promoters of peace.

He advocated the withdrawal of our forces from Korea, of canceling the martial plan, of withdrawing that from the North Atlantic Pact and he urged recognition and establishment of trade relations with Red China and with their admissions to the — the United Nations.

He also charged the leaders of our land with and again I quote, “Treasonous betrayals of our political code.”

He charged the Supreme Court of the United States that sold out to its enemies and that again I quote, “Judges with impunity violate our constitutional rights.”

He even charged the Vatican and the Pope with duplicity and conspiring to help Hitler launch World War II and he blasted all persons who criticized Russia.

He charged the American people with permitting the Government to make war on the people of Greece, China and Korea and predicted that in time, the Government might make war even upon its own people.

Now, before going I think —

Could I ask you a question at that point?

Frank B. Belcher:

Yes, sir.

Supposing you didn’t have in this record his refusal to answer questions, is it your position that any of that material that you’ve read would have justified it being kept out of the Bar?

Frank B. Belcher:

No, sir.

Then, why refer to it?

Frank B. Belcher:

Because I say that it furnished the Court of Appeal for cross-examination of this man an inquiry into some of his beliefs and associations which he consistently defined to give the Committee the right to do.

Now, I want to again make it clear, exceedingly clear that I recognize the man’s right to write and speak as he has done.

But I want to make it equally clear that I think that the Committee of Bar Examiners of California not only had the right but that they had the duty with those utterances coming from him to ask concerning some of his beliefs with reference to the forceful overthrow of the Government or the use of other unconstitutional means.

Now, the Committee did attempt to question Mr. Konigsberg with respect to these articles but without much success.

For example, when they asked him if certain statements written by him was a true statement, he replied in substance that when a person writes as a newspaperman, freedom of the press and freedom of the speech are involved, “regardless of truth or falsity.”

And argued that by reason of the First Amendment, he was not required to answer as to whether he now took the same position.

When asked again further as to some of his present beliefs, he answered and stated and again I quote him, “I believe that what I believe today has no bearing on my moral fitness to practice law.”

Now, he persisted in that position time and time again even though this Committee advised him that all it was trying to do was to test his veracity.

Now, the following transport — transpired in front of this Committee by Mr. Fuller, a member of the Committee, quote, “To return to the editorial entitled, Court of Last Resort, dated May the 11th of 1950, there is this language.

When the Supreme Court of these benighted States can refuse to review the case of the Hollywood Ten, thus making that high tribunal an integral part of the Cold War machine directed against the American people, then the enemies of democracy have indeed won a major victory.

Frank B. Belcher:

When the commanders of the last legal bulwark of our liberties sell out to the enemy, then the fascists have gone far, much further than most people think.

He who cannot see the dangerous damnable parallel to what happened in Germany is willfully blind.”

He questioned, “You made that statement?”

Mr. Konigsberg – “If that is a correct copy of what I wrote, I made the statement at that time, yes.

Mr. Fuller – “And would you make that Statement today?”

Mr. Konigsberg – “Again, I give you the answer that because of the guarantees of the freedom of speech, the freedom of the press under the First Amendment, the Committee has not empowered into — to inquire into what I think or say today.”

Mr. Fuller – “Have you any evidence to support your statement at the Supreme Court sold out to the enemy?”

Mr. Konigsberg – “I think I covered that in what I said in answer to your previous question.”

Mr. Fuller – “I don’t believe it is in the evidence to support that statement.”

Mr. Konigsberg – “Are you asking me if I have any evidence now?”

Mr. Fuller – “Did you have any evidence then?”

Mr. Konigsberg – “I think the same answer applies.”

Mr. Fuller – “What is the answer?”

Mr. Konigsberg – “The Committee is not empowered to ask me questions relating to what I thought or opinions which I express.”

Now, the Committee also asked this petitioner, quote, “Mr. Konigsberg, are you a Communist?”

Now, his answer to that was long and in bulk but in substance it was that he did not advocate the overthrow of the Government by force or violence that whether he was or wasn’t a Communist, the Committee would get a dozen informers who would say the opposite and that his right of political opinion is protected under the First Amendment, but he didn’t answer the question.

Pages 37, 38 and 39 of the record, the same question was put to him and he took the same attitude.

When he was asked if he had knowingly participated in any organization which he believe was sympathetic to the Communist cause, his answer in substance was that it wouldn’t have made any difference to him one way or the other, so long as the organization had other proper objectives.

And he declined again on page 40 of the record to say whether he was or was not a member of the Communist Party.

On page 118 of the record, he was asked.

“Are you a member of the Communist Party now?”

To which he made this reply “The answer is the same I would give.

The Committee is not empowered any more than they may inquire whether I’m an Elk, a Freemason, a Democrat or a Republican.

It might be incriminating to be a member of the Democratic Party today, like saying all Democrats are traitors.

Now, he was advised by this Committee that the Committee was interested in knowing whether or not he had any past or present affiliations with the Communist Party.

Harold Burton:

Is that the ground in which he was denied admission?

Frank B. Belcher:

No, sir.

He was denied admission on the ground that he is — had not established his good moral character and the director did not establish that he —

Hugo L. Black:

Was that based on the statement made at that time?

Frank B. Belcher:

Well, I was not a member of the Committee, but undoubtedly, the Committee did and had a right to take into consideration his refusal to answer those questions.

Hugo L. Black:

And what — and they questioned his beliefs and opinion?

Frank B. Belcher:

I think they furnished the Committee with a right of cross-examination which he denied.

Standing alone on the articles, I would say would —

Hugo L. Black:

Is there any evidence of any kind in records?

Frank B. Belcher:

Well, I’m not entirely certain that I understand just what definition you’re placed — placing upon good moral character.

Hugo L. Black:

All right.

I assume that that was (Inaudible)

Frank B. Belcher:

There is no — there is no showing in this record that the man was ever — that he had ever robbed a bank, that he had ever stolen money from anybody or that he —

Hugo L. Black:

Did he have anything to show that he had ever deviated from the moral codes that you would find his integrity (Inaudible)

Frank B. Belcher:

There’s evidence here that he attended Communist Party meetings.

Hugo L. Black:

Is there anything about that?

Frank B. Belcher:

Not, basically — not beyond what I have indicated to the Court and what I am going to indicate in just a few further reference.

Hugo L. Black:

Is that the only practice (Inaudible) to rely to the fact and so far as the record is concerned, failed to show — show (Inaudible)

Frank B. Belcher:

And his own appearance that attitude and his answers before the Committee.

Hugo L. Black:

(Inaudible)

Frank B. Belcher:

Yes, sir.

Felix Frankfurter:

Can I ask you, Mr. —

(Inaudible)

Frank B. Belcher:

Under our decision, sir, there is no question of that.

That any petitioner must assume the burden it has been declared many times by our Supreme Court and so far as my research has disclosed as a universal rule throughout all States in the United State.

Hugo L. Black:

How could he do it?

Frank B. Belcher:

Of his good moral character?

By bringing in proper evidence of that by undergoing questioning —

Hugo L. Black:

How many witness did he have?

Frank B. Belcher:

I beg your pardon?

Hugo L. Black:

How many witnesses did he have?

Frank B. Belcher:

He brought in some 40 letters from various people.

Hugo L. Black:

What was the objective of the letters?

Was he given enough (Inaudible) when he was questioned?

Frank B. Belcher:

He was told that it would not be necessary that the Committee would —

Hugo L. Black:

(Inaudible)

Frank B. Belcher:

That is correct, sir.

Hugo L. Black:

And was there anything (Inaudible)

Frank B. Belcher:

On the contrary, they all let them had the very glowing statements as to the man’s record although none of those record, none of those letters gave any evidence of any knowledge of his having been or having attended meetings of the Communist Party or of any of this writing.

Hugo L. Black:

And would that be the basis on which your argument (Inaudible)

Frank B. Belcher:

No, sir.

I think he was not of good moral character.

Hugo L. Black:

(Inaudible)

Frank B. Belcher:

Because I think any man who comes before the Bar seeking to be admitted to practice law or to answer with frankness questions concerning his past associations and beliefs and so on, particularly when they involved his attitude towards the Government and particularly when they involved his attitudes towards the courts from the lowest to the highest in the land.

Hugo L. Black:

Is that the only thought?

Frank B. Belcher:

Well, that’s the major portion of it, sir.

Hugo L. Black:

Do you think I understand that?

Frank B. Belcher:

Well, I don’t think that he has sustained the burden here at all by showing that he would not advocate force and violence against the Government.

And that he’s extolling members of the Communist Party of Russia and that those who have been sympathetic with the Communist Party raised a very, very severe doubt in that regard.

Felix Frankfurter:

Mr. Belcher, if — if this witness, he had this before your Bar Committee, a similar situation, perhaps these questions that have been said in a high standard, “Yes, I was an enrolling member of the (Inaudible) the Communist Party in 1939 to February 9th, 1957 (Inaudible) since that I have not been and have not (Inaudible) the Communist Party.

Would the law of California (Inaudible) could that bar him from admission to the Bar?

Frank B. Belcher:

No, sir as such.

Felix Frankfurter:

I don’t know what that means.

I’m no more (Inaudible)

Frank B. Belcher:

Well, no.

Felix Frankfurter:

Merely because of (Inaudible)

Frank B. Belcher:

Not if the — not if he had the — not if he otherwise resist, now with your question, one with that disbarring.

Felix Frankfurter:

Not disbarring?

Frank B. Belcher:

No, sir.

Felix Frankfurter:

He called the man before he — suppose the man said he was as a Communist (Inaudible) until the Korean War entry is denied.

Frank B. Belcher:

Well, now, Your Honor says you’d mean —

Felix Frankfurter:

I’m not — I’m not trying to prove your opinion.

I’m trying to find out whether either by a statutory provision that by a ruling with your Supreme Court, admission to the Bar excluded by somebody if you plead as now, I’m a member of the Communist Party.

Is the statute of — is the statute of California dispose this?

I’ve been talking about force and violence.

Felix Frankfurter:

I’m talking merely (Inaudible)

Frank B. Belcher:

No, sir.

There is not.

Felix Frankfurter:

Suppose the man is on the witness stand and you were a member of the Bar Committee and he says, “I am not a member of the Communist Party.”

I was (Inaudible) as I could quote California and (Inaudible), so far as I know, but I completely disbelieve in force and violence.

There’s no stopping it.

I take no (Inaudible) and a lot of people take no (Inaudible) with that he respond.

Frank B. Belcher:

Not, as a matter —

Felix Frankfurter:

I just want to know as a matter of law so far as yours ascertain it.

Frank B. Belcher:

As a —

Felix Frankfurter:

Will that go or put there because of that statement, because of that particularly is not likely to (Inaudible) his moral character.

Frank B. Belcher:

Answering your question as a matter of law, the answer would be no, whether or not it might disbar him as a matter of fact upon a factual determination by the Committee presents another question which is in —

Felix Frankfurter:

But he could say, nobody — what I want to know is could the Committee of the — could the Bar Examiners writing the opinion to say their attitudes so much of this petitioner has admitted that he was a Communist from 1947 to 1950.

(Inaudible) bring down the Korean War, 1950.

He then speaks, he believes in it that he no longer cares.

But because he was at the 1950 there, in our opinion, he would be likely — he would (Inaudible) — likely with good moral character for — assuming the Bar Committee (Inaudible) the Supreme Court of California say that’s all I have.

Frank B. Belcher:

Well, of course, that’s extremely hypothetical, Your Honor.

And I’ve —

Felix Frankfurter:

But I want to know whether (Voice Overlap) —

Frank B. Belcher:

I’ve missed —

Felix Frankfurter:

What — it isn’t hypothetical to me to desire to know whether the membership in a — in the Communist Party as such is proof of lack of moral character.

Frank B. Belcher:

Well, now, if you take judicial notice that the member — that the Communist Party is a continuing conspiracy to overthrow Government by force and violence as has been legislatively found and has been judicially found then my answer to your question would be yes.

However, the precise question which you are now posing to me, will doctors be debated at length in the next case which follows this when upon your calendar were almost that precise situation existed.

Now, to pursue on —

(Inaudible)

Frank B. Belcher:

Yes?

(Inaudible) It is in part a (Inaudible) to establish good moral character, what we uphold in this case (Inaudible) whether or not (Inaudible) and that since he would not reply the inquiry as to his membership to the Communist Party (Inaudible) his association to that committee if he had (Inaudible)

Frank B. Belcher:

That’s very good summary of it, sir, yes, sir.

Except I want to go if I may just one step further in showing just how far is declination to answer questions went.

On page 109, he said, “I really say that you are not entitled to know my associations and any person may refuse to answer on the basis of the rights of a citizen under the First Amendment to which I have previously referred to on my testimony.”

Frank B. Belcher:

Again, he said, “As to whether I still believe this or not, then I think you’re venturing in to the realm of belief again.”

I don’t refuse to answer.

It was always the position he took but I say under the basis of my rights under the First Amendment, I’m not required to answer.

Again, he stated his position next, “You are empowered to ask.

Do I personally advocate the overthrow by — the overthrow by force or violence or other unconstitutional means, and at the time I say, No, you can’t ask any further political questions.”

Again, he said on page 125, “The Committee can only ask.

Do you now personally advocate the overthrow of the Government of the United States or this State by force or violence or other unconstitutional means, and if I say no, yes or whatever it may be, that is as far as you can go.”

And again, I am saying they can only ask, “Do I advocate the overthrow of the Government by force or violence or other means?”

And in substance, he specifically stated and declined to give to this Committee any right of cross-examination whatsoever on his declaration as to his attitude about the use of force.

Earl Warren:

Mr. Belcher, I’m not quite clear yet (Inaudible) your position is that declamation of — of the petitioner to answer this question that constituted failure to show his good moral character or whether it was his continuous association testified to by most of defendant as of the year 1943 (Inaudible)

Frank B. Belcher:

It is a —

Earl Warren:

You must be (Inaudible)

Frank B. Belcher:

Regretfully, I cannot agree with Your Honor, that it must be one or the other.

I say when the testimony of Mrs. Bennett and the man’s declaration raised a strong suspicion or even an inference that he was a member of the Communist Party that he may have been a member of the Communist Party yesterday or the day before and that being so at least the suspicion or inference of his sympathy with the use of force and violence arose that in order to — and having in mind the record of deceit and treachery of that Party, that the obligation then involved upon him to answer with the utmost freedom and frankness before that Committee exactly what his attitude was.

But when he simply took the position that I say today, today and he limited it right down today that I do not advocate the use of force and violence and then declined all the right to cross-examination.

Or to prove him in the slightest extent in that regard that the man just simply failed to meet the test to proving his good moral character and failed to remove the suspicion or inferences to what his attitude might be with respect to force and violence.

Earl Warren:

Suppose that (Inaudible)

Let us suppose he’s been (Inaudible) in 1943, he was and Congress says.

He was entitled at that time to register into Congress under California law and to vote in Congress under California law, if he had that vote would that in and of itself have been a demonstration or lack of good moral character if the Committee chose so preserve.

Frank B. Belcher:

Will you couple with that his refusal to answer any question —

Earl Warren:

(Inaudible)

Frank B. Belcher:

All right.

I’ll —

Earl Warren:

(Inaudible)

Frank B. Belcher:

All right.

I’ll say no to your — I’ll say no to this question drawing that 1943 line and just nothing further connected with it.

Of the moment that he declines to answer any questions when they say, “Well how about 1944 and on 1948 or yesterday?”

Earl Warren:

sWell, that be if it goes (Inaudible) —

Frank B. Belcher:

No, I do not say and —

Earl Warren:

— in determining what the case, but I did want to get in my mind what the fact was (Inaudible)

Frank B. Belcher:

I do not say that membership in a Communist Party as of the 1930s or at 1940s in and of itself standing alone and coupled with good proof from that time on down would — would disbar him or — or make the man unfit for certification.

But when he declines to answer a question and let anybody else find out how he’s good yesterday or the day before then I say that it does.

In other words, if he’s (Inaudible)

Frank B. Belcher:

Standing alone.

(Inaudible)

Frank B. Belcher:

I don’t say that.

I think if they’d have a right to inquire further, but that the man in view of the fact that the Courts have consistently placed the burden of proof upon him would have to answer with frankness.

And this Court has so —

Suppose in California he’d made a crime and (Inaudible) he couldn’t finish the — he couldn’t find (Inaudible)

Frank B. Belcher:

That’s correct, sir.

That’s correct.

(Inaudible)

Frank B. Belcher:

But I — well, I — I apprehend that your degrees of proof for a criminal conviction and those for a denial of practice of law or even disbarment may be somewhat different.

Now, may I just include in closing, point out just briefly to this Court some of the utterances which he just has made and while we have cited a number of cases in the brief, I’m only going to refer to two.

And I do this because of the very obvious separate which has been made here to place lawyers in a different category than public employees and school teachers.

And I say to this Court that I want lawyers under no lesser standard, certainly one equally strict with the school teachers and municipal employees if not even more so.

Now, in the well-known Adler case against the Board of Education as latest 342 U.S., this Court said in response to an argument that this Steinberg Law constituted an abridgment of the freedom of speech and assembly of person seeking employment into the public schools of New York.

And I quote, “It is clear that such persons have the right under our laws to assemble, speak, think and believe as they will,” and we so concede to this petitioner.

The Court continues on.

It is equally clear that they have no right to work for the State in the school system on their own term, and the same thing may be said with respect to the right to practice law.

And quoting from United Public Workers versus Mitchell, “They may work for the school system upon reasonable terms laid down by the proper authorities of New York.

If they do not choose to work on such terms, they are at liberty to retain their belief and associations and go elsewher.”

And so with this petitioner.

Has the State best deprived them of any right to free speech or assembly?

We think not.

Such persons are or maybe denied under the statutes in question, the privilege of working for the school system of the State of New York because first, of their advocacy of the overthrow of the Government by force or violence or secondly, by unexplained membership in an organization found by the school authorities.

They have to notice in hearing to teach and advocate the overthrow of the Government by force and violence and known by such persons do have such purpose.

According in that case, quoted from Garner against the Los Angeles Board of Public Works as follows.

“We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability to public service.

Past conduct may well relate to present fitness.Past loyalty may have a reasonable relationship to present and future trust.Both are commonly inquired into in determining fitness for both high and low positions in private industry and we are — and are not less relevant in public employment.”

Frank B. Belcher:

And certainly why should they be any less relevant when a question involved is one of admission to the Bar?

Earl Warren:

Am I correct Mr. Belcher in my recollection that all the way from 1950 or 1949 (Inaudible) his time with the University of California, the loyalty oath (Inaudible) in the Garner case, that that was introduced in the legislature by the defending committee to compel all lawyers to take the loyalty oath in that State Bar of Sacramento and the (Inaudible)

Frank B. Belcher:

Well, perhaps Your Honor, it’s overrating the influence of the State Bar with the legislature but otherwise your recitation is correct.

Earl Warren:

I think it’s barred, not required.

I’m not sure (Inaudible)

Frank B. Belcher:

No, I was not one of the representatives of the State Bar —

Felix Frankfurter:

United States — the proposal is the same, is it?

Frank B. Belcher:

Yes, sir.

Felix Frankfurter:

(Inaudible)

Frank B. Belcher:

Oh, yes.

The Bar itself did not support.

Felix Frankfurter:

(Voice Overlap) —

Earl Warren:

I don’t know anybody else who was not (Inaudible)

Frank B. Belcher:

Correct.

Felix Frankfurter:

Will you be modest about the Bar because as I went to the House of Delegation, that is one of its noble proposals on the present (Voice Overlap) —

Frank B. Belcher:

Well, sir, that — that is the American Bar Association —

Felix Frankfurter:

(Voice Overlap)

Frank B. Belcher:

— and perhaps it is not quite exposed to the Grassroots’ Lawyers as the State Bar of California.

Felix Frankfurter:

All I’m suggesting is that you did oppose the policy of the House of Delegates’ proposal.

Frank B. Belcher:

In the American Bar?

Felix Frankfurter:

(Inaudible) that the American Bar proposal —

Frank B. Belcher:

Yes.

Felix Frankfurter:

— and the California Bar upholds it.

Frank B. Belcher:

Well, I don’t really know but I would imagine that they would, certainly if I achieved the policy, I would.

Felix Frankfurter:

[Laughs]

Frank B. Belcher:

Now, with respect to counsel’s auditory statement.

Here that we have no right to inquire into this man’s past associates or the position which he took.

Let’s see what this Court has said about that.

One’s associates past and present as well as one’s conduct may properly be considered in determining fitness and loyalty.

From time immemorial, one’s reputation has been determined in part by the company he keeps.

Frank B. Belcher:

In the employment of officials and teachers of the school system, the State may very properly inquire into the company they keep and we know of no rule, constitutional or otherwise that prevents the State when determining a fitness and loyalty of such persons from considering the organizations and persons with whom they associate.

Hugo L. Black:

That applies to all?

Frank B. Belcher:

Well, I certainly think it applies to lawyers, sir and I —

Hugo L. Black:

Well, how come I can’t (Inaudible)

Frank B. Belcher:

Well, that — that language of course must receive an interpretation of reason and I have no doubt but that it must have some relevancy to the object to be obtained.

Hugo L. Black:

(Inaudible)

Frank B. Belcher:

That’s correct, sir.

Yet, let’s take a look at the Summer’s case from Illinois in which a man was denied admission there by the Supreme Court of Illinois because of his religious beliefs in unquestioned good faith, which would have prevented him from bearing arms in the militia of the State of Illinois when they had a constitutional provision which would permit the State to call him in anytime aboard.

And they denied him admission on that ground.

Hugo L. Black:

Yes.

Frank B. Belcher:

And his — this Court upheld it.

Now, that certainly gone a lot further than anything if we — that we have advocate — that we advocate in this case.

I was going to refer to the CIO-Doud’s case but unquestionably, it will be read by the Court in reaching its conclusion in this case.

But in summary, may I simply say that I think the Board of Bar Examiners of the State of California and the Supreme Court in passing upon that very conduct was more than warned in the only two findings which they made.

One, that this man had failed to sustain the burden of proof as to his good moral character and that he failed to establish that he did not advocate the use of force and violence and other unconstitutional means in the overthrow of the Government.

And therefore, I say that if this Court gets passed jurisdictional question into the merits of the matter that the decision of the Supreme Court of California should be affirmed.

Thank you.

Edward Mosk:

If I have — I think I have just a few minutes, Your Honor.

Earl Warren:

Yes, you may.

Edward Mosk:

I’d like to address myself just to few little points.

First of all, I — I want to indicate to the Court that I did not purposely pass over the jurisdictional point.

I had considerable note on them, but we never quite got to those points.

And I’m satisfied that the record in the briefs cover it except I would like to call to the Courts attention one point and that is that in respondent’s reply brief before the California State Supreme Court as indicating the complete recognition of the constitutional points aside from other references in respondent’s brief in their conclusion, their final summary to the California Supreme Court, respondent says in part.

In addition, respondent has shown its questions were proper that petitioner had no constitutional privilege justifying his refusal to answer.

So that it’s perfectly clear, not only from the overall record and as I indicated in further detail in my brief, respondents themselves recognized and presented before the Court the constitutional questions at all times below.

Hugo L. Black:

May I ask you Mr. Mosk?

Edward Mosk:

Yes.

Hugo L. Black:

(Inaudible)

Edward Mosk:

Yes, it is, sir.

All of the briefs are here.

Edward Mosk:

They’re — we wrote some questions as to what their meaning was but they’re all here before you.

Hugo L. Black:

Are they printed in the record?

Edward Mosk:

They’re not printed in the record but the actual briefs.

Hugo L. Black:

(Inaudible)

Edward Mosk:

There may be more but at least one is here.

I think more.

Now, if I may just briefly to try and get to the heart of some of the comments that counsel —

Felix Frankfurter:

Before you get on to the merits —

Edward Mosk:

Yes, sir.

Felix Frankfurter:

— I read the Johnson case and the reference it was made.

I must say your Supreme Court has dealt with what I call a process which just say (Inaudible) is unconstitutional without the citation of authority or an argument other than an attack upon the method of the State Bar as it appears.

If the rule will separate such — such a presentation the substance is sufficient, requires it to pass upon the point suggested.

Edward Mosk:

Yes, sir.

Felix Frankfurter:

I must be rather surprised (Inaudible) just say the question is vague and raise them.

In fact, I don’t know whether he (Inaudible)

Edward Mosk:

Well, let — I think, Your Honor, I have —

Felix Frankfurter:

He doesn’t raise the question as to which I’m wholly uninformed.

But does it — there’s one reason that they want more than just to say I employ the First Amendment not the Fourteenth, isn’t that true?

Edward Mosk:

Yes.

I — I’m aware of that case, Your Honor, and it is an isolated case.

It deals with —

Felix Frankfurter:

Yes, but what is covered, what is relevant is that it decides to declare of a proceeding.

Edward Mosk:

Right.

But my — my position is very simple, Your Honor, that despite even accepting for a moment the language of that, I think any examination of the — of the briefs that we have here substantiates the fact that it was completely before the Court so that I could point to the individual paragraphs, but I think it would do us no good here.

Now, I — I want to —

Hugo L. Black:

What should be heard in question here?

Frank B. Belcher:

I’m sorry, Your Honor.

What should we (Inaudible) in the case?

Edward Mosk:

As a matter of fact, if Your Honor will read our brief, I do not think that the brief cited really very many cases on any point.

This was presenting a new approach to the Court and there were practically no cases cited as I recall.

Felix Frankfurter:

That’s probably the beauty of it.

There are no cases to be cited for this argument.

Edward Mosk:

That might have been an answer.

[Laughs] However, I — I think that if Your Honors will read the — the record here, I think that the record will satisfy you that it was at all times before the Court and was responded to by the respondents and maybe a major part of their response to our position obviously indicating a complete recognition of the constitutional position that we were putting forward.

I also call to the Court’s attention and this was — is only a first step before the California court have they granted review, we would then have filed our actual briefs and arguments so that this was a preliminary step before the California court.

But let me address myself just to the couple of points that counsel has mentioned here.

First of all, he has said that we failed to meet our burden of proof and has placed everything on this burden of proof.

He has avoided saying that it was this — it was the failure to answer questions or it was the Communist Party membership or it was the articles of the Tenney Committee.

He has simply lump them all together and said, “We haven’t met our burden of proof.”

Now, I want to submit to the Court that this — on this record, the burden of proof within the meaning of the Fourteenth Amendment, that is we have only — we have not an unlimited burden of proof to meet.

We have a reasonable burden of proof to meet.

They cannot place upon us an unreasonable burden.

Now, I submit that on this record, where we have shown affirmatively our good moral character beyond anything that any normal person could do any 23 or 24-year old could do while we’ve qualified educationally passed the Bar exam affirmatively in addition to simply in language established non-belief in force and violence.

And I call to Your Honors attention the one article that dealt with a relevant question under their theory.

Force and violence was a complete declaration of that people should be punished to believe in force and violence.

Hugo L. Black:

Did they all omit it?

Edward Mosk:

That was one that seemed to have been omitted in their original offer which we subsequently in order to make the file clear did offer.

And we — we have shown an affirmation of belief in democratic principles and the deviation on this — this philosophical Communist question only came in the context of saying if you mean by a philosophical Communist, I am a believer in Jeffersonian democracy.

And in that sense, certainly, I am not a philosophical Communist.

This was the context in which this question was answered going directly to the force and violence question.

Introduced letters from all walks of life and — and just to — to point out one of them from Professor Niverville of the University of Southern California, one of the people who knew him last and closest points out, “It was my impression that Mr. Konigsberg is a man with the courage of his convictions but not one who holds those convictions blindly or with any but the most honest motives.”

He seems to hold the Constitution in high esteem and is a vigorous supporter of civil rights.

But it is interesting to note that despite his vigorous position, he showed a willingness to recognize the necessity from time to time of balancing the interest of the individual against the interest of society and so forth.

So that when counsel says, “The letters did not go to the heart of the issue,” these letters did go to the heart of the issue and we offered to bring these people before the Committee and let them cross-examine them on the heart, but the Committee never availed itself of that opportunity.

Now, —

(Inaudible)

Edward Mosk:

I’m sorry, Your Honor.

(Inaudible)

Edward Mosk:

I’m generally familiar with it.

Yes, sir.

(Inaudible)

Edward Mosk:

Yes, yes.

(Inaudible)

Edward Mosk:

On the factual basis, Your Honor?

(Inaudible)

Edward Mosk:

I would not — the facts would not be that close, Your Honor that I would want to comment on it from that point of view.

I — I would like to refer to the other cases of the counsel cited and the Adler case for instance where counsel used this to say and pointed out that it involved the right to work in a school system and I submit that right there, we’ve come to the crux of the difference and it is certainly not my position that there — that there is such a great difference between education and the law and I don’t want to be placed in that position.

But nevertheless, this case was at least in part based upon the fact that here were employees, employees of a school system.

But when we are dealing with the legal profession, we are not dealing with employees of the State.

The lawyer is not an employee of the State.

He is an independent person and the very independence of the lawyer is the reason why the kind of encroachment which the respondent here is endeavoring to make is going to destroy that very independence of the Bar.

Because if they are entitled to ask this kind of a question, what would prevent for instance the Supreme Court of — or the Committee of Bar Examiners say in Alabama from saying, “Are you a member of the NAACP,” knowing that so far Alabama is concerned, the NAACP believes in overthrowing the — the kind of — of status of the Government there.

And I submit that you cannot make this kind of an encroachment in the case of a legal profession and still maintain the kind of standards and high moral principle that the legal profession includes.

I would like to and I have not the time to do it now, call to the Court’s attention the questionnaire which respondent themselves sent out to petitioners here and see whether they included themselves within that good moral character of these political questions.

They asked the — every petitioner certain questions in a questionnaire which is included in the record here at page 262.

And in this, they went directly to the type of thing which has always been good moral character in the past.

I submit, Your Honor, that what they have asked him to do, the petitioner here to do is to give up his good moral character, his principles in order to become a man of good moral character.

And I submit that this is improper and the petitioner should be allowed to be a member of the Bar.