Schware v. Board of Bar Examiners of New Mexico – Oral Argument – January 15, 1957

Media for Schware v. Board of Bar Examiners of New Mexico

Audio Transcription for Oral Argument – January 14, 1957 in Schware v. Board of Bar Examiners of New Mexico

del

Earl Warren:

Number 92, Rudolph Schware versus Board of Bar Examiners of the State of New Mexico.

Mr. Levy, you may continue.

Herbert Monte Levy:

Thank you, Your Honor.

Yesterday, in the four minutes that I had to argue, I attempted to establish that there was no question here actually of burden of proof in terms of the petitioner’s showing of his good moral character that he made below.

I would like to begin today by stressing the affirmative proof in relation to the petitioner that was given by him.

The first and perhaps the most cogent point is that this man was a dupe of the Communist Party, who is duped into joining the Party in 1934 and left it in 1940 when he began to learn what it was all about.

I think a special stress must be laid upon the fact that he testified without contradiction, without any doubt manifested anywhere else, that after he left the Party, he went to the FBI to be of assistance to them in the fight against communism.

In other words, we have the picture of a man who has been an anti-Communist for at least a decade who is now barred from admission to the bar of a court.

Among other reasons, I would say mainly, because of his past membership in the Communist Party.

I think it also deserves note that this man voluntarily admitted that he had once been a member of the Communist Party, going to the dean of the law school, admitting it to him in the very beginning without any request therefore.

I think it should also be noted that he led an honorable life in the Army of the United States and received an honorable discharge.

I think it should further be noted in regard to what the respondent in terms of discrepancy in a number of arrests that he had undergone in California, that this man made a trip halfway across the country to California to find out exactly what the situation was as shown by the records in California.

I think it is also worthy of note that this man presented not merely testimonials and affidavits and letters, but also presented live witnesses including the Rabbi of this Orthodox Jewish Synagogue, who testified as to his very high opinion of the petitioner.

He presented the dean’s secretary, who knew him fairly intimately, she said.

And she testified too as to her very high opinion.

And the blind student, whom Schware had helped in law school over and above the call of duty, also testified as to his fine moral character.

This is in addition to the other point such as his conversion to religion, his establishing an anonymous scholarship for indigent students at the law school, letters of recommendation from virtually everybody there, etcetera, etcetera.

In terms, again, of the letters that he presented showing his high moral character, the respondent has raised some questions as to the lack of enthusiasm, so-called lack of enthusiasm in some of the letters which was submitted.

However, in other letters, which he of course does not advert to, I’m referring now to page 85 of the record, we find one person, Mr. Martinez testifying that, “Schware’s moral character in my opinion is far and beyond the highest standard of any person I have ever come in contact with.”

And then, on the next page 86 at the bottom, another person testifies that Schware is a person of the highest and best moral character.

And at the bottom of 87, another person testifies, “That I know Mr. Schware to be open-handed charitable towards others and scrupulously honest in every situation.

Were he to represent me, I should have every confidence in his integrity.”

And again, on page 88, another person says in the center of the page, “That I find him trustworthy, honest and his character to my estimation is above reproach.”

So that I think we have here a case where whatever burden of proof there may have been as to his good moral character, Mr. Schware has sustained it more than admirably if ever there was a — shall I call it a super prima facie case, I think this was it.

The record also shows that Mr. Schware had been an idealist all his life, that he joined the party for idealistic reasons.

But when he found that this god had failed him, so many others had found in the past, he left the Party.

He himself was the person who furnished all the derogatory information against him.

He concealed nothing.

He refused to answer no question.

I think it’s also worthy of note that exactly the same decision in regard to his case was made by the Board of Bar Examiners before and after Mr. Schware introduced his affirmative evidence.

Herbert Monte Levy:

In other words, the affirmative evidence apparently had no effect.

There is nothing in this record at all to show that anywhere in his whole life had Mr. Schware ever done anything indicating bad moral character.

From my examination of the record, I think I can state that he had never violated the code of honesty, the code of morality, or the code of good social conduct.

As to the point of information.

Herbert Monte Levy:

Yes, sir.

How did the information that he had been a member of the Communist Party get to the Bar Committee, prior to the second hearing or prior to the only hearing that they gave him after their first ruling?

Herbert Monte Levy:

Well, this of course is a matter of some conjecture.

It’s not in the record —

Herbert Monte Levy:

It doesn’t appear on the record.

It’s not.

I’m just curious.

Herbert Monte Levy:

Yes.

I would imagine that this was part of the confidential information that —

That’s right.

Herbert Monte Levy:

— they have received about Schware.

Actually, the burden of proof question is not really in the case.

It’s really a question of the standards they used.

The Court said at page 109 that its standard was of good moral character and I quote now from the top of the page.

“They must consider two kinds of indirect evidence.

First, the pattern of conduct an individual follows.

And second, the consideration of the regard his fellows and associates have for him.”

As to the pattern of conduct an individual follows, using the present tense, there is nothing which anyone could and I am sure there is nothing that the respondents contend, which had been reprehensible during the 15 years prior to the application for admission.

The Court actually just adverted very briefly in one-half of a page to this very fine record that Mr. Schware have had and they nowhere has related it to his present moral character.

In regard to the second standard that they used, the consideration of the regard his fellows and associates have for him, at page 125, the Court said and I quote from the last paragraph.

“The record on which this — second sentence, “The record on which this decision is based came from the petitioner himself, who presently enjoys good repute among his teachers, his fellow students, and associates and in his synagogue.”

So that is to the second criterion that the court used below, they obviously — Schware had sustained that burden of proof.

As to the pattern of conduct he follows, the Court nowhere has considered the conduct of the past 15 years and rested its decision entirely upon the basis of pre-1940 conduct.

The burden of proof, by the way, is mentioned aside from that — the use of the word on page 190 — 109, comes up again only at pages 126, which is the tail end of the first opinion.

And again, in page 150, in both of those cases, they took the question of good moral character is related solely to the question of past membership in the Communist Party and use of aliases, and the fact that there had been arrest.

There is no question raised anywhere as in the opinion as to good moral character in any other way, shape, or form.

Herbert Monte Levy:

The testimony, I think I showed yesterday of the petitioner and his witnesses was all accepted.

There was no question raised.

The only discrepancies that were mentioned at all was the fact that he had given an additional reason for using an alias at one particular point, plus the fact that Schware could not account for his addresses and employments during a particular period about 20 years previously.

And though the Court adverted to that, they did not rely upon that at all.

They said that were it not — they said that this would be devoid of explanation where it not for the fact that Schware led such a peripatetic existence.

But having led that existence, they felt there was certainly a reason explaining why he could not account for these particular times.

I might also add that — or reiterate perhaps that the failure, the inability to account for certain periods of time with regard to employment and addresses was mentioned in Schware’s application blank.

And again, to mention again what I said yesterday, the respondent said that at no time had they ever raised the contention that Schware’s answers were anything but full, true and complete.

As they say, to quote it again on page 90, “Respondent has not made any claim.

The petitioner answered any questions in his applications other than fully and accurately, nor is the respondent’s decision in the petitioner’s case based upon any such claim, nor was the decision below based on any such claim,” I might add.

The only question before this Court then, I think, is quite clearly, the three standards that were used.

As to the first standard, the question of membership in the Communist Party, this I think is central.

I think it must be remembered that the use of aliases and the fact of arrest had been disclosed in the application to take the bar examination.

Despite that disclosure, we find that the petitioner was advised that he was entitled to take the bar examination.That is alleged in paragraph (4) on page 1 of this record in the petition to review.

And that paragraph is specifically admitted on page 90, paragraph (5) of the response to the petition, that he had been advised that he was entitled to take the bar examination.

My opponent — opponents say that he had merely been told to report for an examination, but again, the record stands very clear here that he was entitled to take the bar examination, that he had been so advised.

And —

Felix Frankfurter:

What’s the relevance of that?

Is that an estoppel?

Herbert Monte Levy:

No, I’m not saying that there is an estoppel, Mr. Justice Frankfurter.

Felix Frankfurter:

Then what is — what is the point of that?

Herbert Monte Levy:

I think the point of that is to show the centrality of this issue that the case rested upon that.

And that — but for the past Communist Party membership, this man would have clearly been admitted to the bar, which I think may be of assistance to the Court in framing its order.

Felix Frankfurter:

That’s my difficulty, the statement that a man was allowed to take an examination.

I can hardly reach the conclusion, the contempt that he was to be admitted.

Herbert Monte Levy:

No, but that he would be entitled to take it.

I shouldn’t have said that he would — that he should have been admitted.

Felix Frankfurter:

You’re going to be in New York, after you testify you have to go through the casual (Inaudible)

Herbert Monte Levy:

That’s right, just the reversal here.

Now, again, the court below here specifically conceded that membership in the Communist Party at the time of Schware’s membership was legal, nor do I know myself of any illegality of the Communist Party in any other states during which Schware was in the period from 1934 to 1940.

Herbert Monte Levy:

The court never below quite spelled out precisely what it was, about the Communist Party that made membership in it something that that was revolting.

They, in effect, dealt with some vague generalized immorality that they felt existed in the Communist Party without referring at all to any illegality.

Now, of course, there might have been some immorality in the Party but what they are doing essentially below, I think, is to make a political judgment in saying that this Party was bad.

They also failed to take into account the nature of the Party in the period during which respondent was a member of it.

Felix Frankfurter:

Could they deny admission to the bar because a man is a member of the clan?

Herbert Monte Levy:

Today?

Felix Frankfurter:

Yes.

Herbert Monte Levy:

I would say that if a present member of the clan comes up before them today, I would say that the mere membership would not be a sufficient ground that they would have to show either that this man participate — would have to show where the man might have to demonstrate either that there was no participation in illegal activities, or that he didn’t know of them, or that he was a dupe of the clan.

That’s a little harder to imagine than a dupe of the Communist Party.

But again, I think that there would be a requirement or some proof of that sort.

Felix Frankfurter:

Whether he was a dupe or not, will we reexamine that claim?

Herbert Monte Levy:

No, I don’t think you could not.

I don’t think you could, sir.

But again, here, I’m not asking that because here, the facts were uncontradicted and there was no question raised as to whether he had been into the — been brought into the Party as a matter of idealism.

He testified after —

Felix Frankfurter:

Idealism doesn’t mean a dupe, does it?

Herbert Monte Levy:

Well —

Felix Frankfurter:

Being a dupe means having idealistic motives?

Herbert Monte Levy:

No, being a dupe means having —

Felix Frankfurter:

That was taking a lot of it very far, I must say.

Herbert Monte Levy:

No, being dupe means having idealistic motives and being persuaded to take the wrong methods of expressing those motives and those ideas here by joining the Communist Party.

I say he was duped into it because he thought that it was a fine thing, which of course was quite untrue as he later came to learn.

But his essential reason, the thing that permitted him to be duped was that he was an idealist.

As to again, I think it quite clear —

Hugo L. Black:

Are they any different than your argument whether he’s duped or not duped on your constitutional points?

Herbert Monte Levy:

I think the fact that he was duped makes the argument perhaps more a little stronger, but I think essentially, there is no difference.

I think even if he had joined the Party, knowing what it was, which he didn’t.

And even if he had remained a member of it until 1940 or even 1944 knowing what it was, I still think the decision below is constitutionally incorrect, because it gave no attention to the period of time after the membership and judged entirely on the basis of the past.

It judged present moral characters as if it was judging past moral character, which I think again falls afoul of the rule of this Court in Cole v. Arkansas.

Felix Frankfurter:

But if — if you argue to find some words or some strength to the fact that he was duped, how can any committee of any court find out that a man was duped just by examining his mind out of something?

Herbert Monte Levy:

That’s the only way they could find out, sir.

Felix Frankfurter:

So, if this is relevant at all and we got to — then we have to within a court or bar examiners and they open him up inquiring to what he thought, why he thought it, when thought it, is that right?

Herbert Monte Levy:

Yes, sir, I would say they could inquire into it.

And they did here below.

Felix Frankfurter:

If that so, was legal territory because that isn’t your problem.

Herbert Monte Levy:

That’s right.

That’s yesterday’s problem.

[Laughs] The respondent — well, again, here our problem isn’t even a question of whether a knowing member of the Communist Party from 1934 to 1940 could be excluded from admission to the bar because there wasn’t any knowledge of any evil parts of the Communist Party.

Felix Frankfurter:

Was there any cross-examination of him or examination inquiry of him as to the bona fide, the fidelity, the complete realization that — that he still doesn’t have attachment to the things to which he was attached?

Herbert Monte Levy:

Yes, there was cross-examination on that.

For example, at —

Felix Frankfurter:

That’s why it’s against — all you talk about dupe, it gets into difficulty of all sort.

Herbert Monte Levy:

Yes, it may, sir.

Felix Frankfurter:

They’ll get you to a great difficulty before you get through with it.

Herbert Monte Levy:

It may.

We have at the bottom on page 46, where he was questioned.

“Suppose the ruler of Russia today would to be overthrown to the — to be overthrown into the eyes of the Communist, the control of the Communist Party was restored to sincere Communist, those that believe in principles of communism, that condition existed.

Do you still believe in those principles to the extent that you would again join the Communist Party?”

Answer, “Never.

Never.”

And then, a bit below, “I am saying, judge, that for myself, I would never join the Communist Party.

I would never join the Communist Party.”

But there was a question as to when he had ceased believing in all Communist principles, which by the way was never quite clearly defined whether some of the innocent names of the Party were included in this, whether this what Schware meant, one can’t quite tell from the record.

And he does frankly admit that his disillusionment with all the principles of communism, which I’ll call principles, took a few more years to bring about, which is of course, the history of almost every person who has ever been in and left the Communist Party.

Felix Frankfurter:

Your’e — you’re not suggesting.

Isn’t it a part of your argument that an ex-Communist becomes the most — becomes especially virtue of that then finds out he was wrong?

Herbert Monte Levy:

No, sir.

Felix Frankfurter:

That seems to be a doctrine that has some string for the purpose.

Herbert Monte Levy:

Yes.

I suppose if that doctrine had had sway in New Mexico, we never have been here, but I don’t think that he becomes the most power of the persons.

Herbert Monte Levy:

I think that — by the way, there are statistics now available, which I quote in some of the footnotes in terms of what happens to the ex-communist and actually the — well, perhaps, some of them may be very valuable fighters against communism.

The ones who are in the public eye all the time because of perhaps excessive ways or all means of fighting communism are generally the — or not generally, are actually a very small minority of the number of ex-communists.

We have 700,000 ex-communists about.

We have about 30 — 30,000 members of the Communist Party today, which means that about 25 times as many people have been in, learned what the Party was about and left as are in the Party today.

Supposing the Committee had articulated its grounds in this fashion, point one, we agree that past membership in a Communist Party does not foreclose this man from certification but on the basis of the record and the impression that he has made on us, etcetera.

We’re not satisfied that he still does not adhere to — to believe that the Government should be overthrown by force and violence, assuming that he’s made those findings.

What would you say of your case on this record?

Herbert Monte Levy:

Well, I would say on this record that that was merely a method of foreclosing this Court from examining the uncontradicted facts and the admitted facts of the record which show that there is a constitutional issue, which is presented by the actual record, not as the Court would have made it then.

The —

What would the constitutional issue be then?

Herbert Monte Levy:

You mean if they said that they are not satisfied that he had — that he had — that he had bona-idedly left the Communist Party?

Not satisfied that he did not believe in the forcible overthrow of the Government.

Herbert Monte Levy:

I see.

Well, if they said that they were not satisfied that he had — that he did not believe in the forcible overthrow of the Government.

And there was a record from which they could have made such an inference.

And if that were a requirement of admission to the bar, I would say that it was a perfectly reasonable requirement.

But again, that situation isn’t present here.

Again, his uncontradicted testimony and the accepted testimony all throughout was that he had left the Communist Party.

Again, even if they had said what they did, what — what you say they might have said, what they said here was no such thing.

Here, they rested entirely upon the past membership.

This — this was the basis of their decision.

They said that very clearly, “Past membership in the Communist Party”.

They said nothing otherwise.

That I think is at page 150.

Petitioner is also dissatisfied because we did not rule where the former membership in the Communist Party alone establishes a lack or absence of good moral character.

The answer to this is that the question was not and is not now before us.

We stated in our opinion and we reiterate here, we believe one who was knowingly and again they have nothing in the record to support that.

We believe one who has knowingly given his loyalties to such a program and belief for six to seven years during a period of responsible adulthood is a person of questionable character.

This conduct of petitioner, together with his other former actions in the use of aliases and record of arrests, and his present attitude toward these matters and were the considerations upon which the application was denied.

So that the hypothetical case you mentioned, Your Honor, which is a difficult one of course, is not the one that is actually present before this Court.

Herbert Monte Levy:

Threads of it is present of course in the — yesterday’s case, Kingsburg case.

Felix Frankfurter:

Mr. Levy, let me put you on a case.

Yes, sir.

Felix Frankfurter:

It relates to — the problem that I’m trying to create is the respective function of this Court and the state court in the problems in the state, the scope of reviewing the part of this Court in the matter they saw.

Yes, sir.

Felix Frankfurter:

Because I suppose everybody was being granted here, and we can review admissions to the bar —

Herbert Monte Levy:

That’s right.

Felix Frankfurter:

— in which there are rejections, I suppose everyday in the City of New York and it’s on — it has to be run, I believe, because I’m advised (Inaudible)

I suppose a State, New Mexico and New York, California, New Jersey, I don’t care what, suppose one of the State as part of this movement of the Integrated Bar and you’re going to view the problem of the Commission and expulsion from the bar, the way the English do it, hand it all over to the corporate membership of the bar, it had to be — it had to be determined who can be admitted into the bar and who could stay.

And the statute of the Constitution of the States further go around and say, “No court shall review the action,” whatever they call the bar examiners (Inaudible)

Will that statute be unconstitutional in your view?

Herbert Monte Levy:

I’m not sure it would be unconstitutional on its phase, but I’m sure that in many situations it would be unconstitutional as applied.

Because it could be — if the outside corporate body acted arbitrarily or unreasonably, or let’s — and let’s take the example, let’s suppose they said that no Catholics, no Jews can be admitted to the bar.

I’m sure that —

Felix Frankfurter:

Catholics or not?

Herbert Monte Levy:

No, its let — let’s say that the corporate body which exercises his power says that —

Felix Frankfurter:

Not so.

Herbert Monte Levy:

— and they act pursuant to it, and they excluded you in a Catholic.

No hesitancy in saying that the statute is applied therein or at least the action that was taken under it would be considered unconstitutional.

Felix Frankfurter:

How would you enforce that conclusion?

Herbert Monte Levy:

Pardon?

How would you enforce that conclusion if the state constitution also says, “There shall be no ruling, no reviewing part, no court in this state shall have jurisdiction to consider and review the action of the state bar examiners.”

That would be a rough procedural question.

I suppose what I would do, and this is a quick off-hand guess of course if they say that there’s therefore no state remedy, go into the federal court to seek a declaratory judgment or injunction.

Felix Frankfurter:

You — you invoke this kind of things that was indicated in the Mooney case.

Herbert Monte Levy:

That’s right.

Felix Frankfurter:

The State has its own relief.

And what would be the basis on which you go in to the federal court?

Herbert Monte Levy:

The basis would be that the action was arbitrary and unreasonable, violative of freedom of religion and speech.

This is —

Felix Frankfurter:

Now, that’s what this problem would tell me, doesn’t it?

Herbert Monte Levy:

Exactly.

And this was of course the situation which was mentioned in the Summers case, where the Court said that you could not take arbitrary action in barring somebody.

Felix Frankfurter:

Now —

Hugo L. Black:

I suppose in the hypothetical case Mr. Justice Frankfurter used —

Herbert Monte Levy:

Yes, sir.

Hugo L. Black:

— you would also probably have to call the (Inaudible) problem as to whether you could take away a lawyer’s right to practice for that some kind of judicial review.

Whether it would call the quoted petition or not of some kind, whatever it is, it means due process of law if it stood some kind of judicial action and supervision.

I guess you’d have that question.

Herbert Monte Levy:

Yes, you would, yes.

Felix Frankfurter:

(Voice Overlap) —

Herbert Monte Levy:

Well, I — no, because here the Supreme Court —

Felix Frankfurter:

I mean could you go into the federal court and just say that the state of — of the masters asked you to pass the statute and said the admission to the bar is going to be by a committee of bar examiners.

I — I don’t think — I don’t know but I don’t — it might be (Inaudible) of the Integrated Bar, District of California.And they shall have a full control and no court of this state shall have the reviewing power.

Now, could a man go to the federal court merely because the presentation of the case comes from the state agency into a court?

Herbert Monte Levy:

That is a problem which has been suggested, arises in the medical profession.

Gilmore and his brokerage have cited, had some discussion of that and I suppose that might be declared unconstitutional under the state statute as a delegation of judicial functions to (Voice Overlap) —

Felix Frankfurter:

I’m not talking about the state.

Never mind about the state.

Herbert Monte Levy:

No.

I would say that would very probably be a denial of procedural due process.

Felix Frankfurter:

Not — not to be able to go into a court.

I’m not talking about the thing that we can just a minute ago, namely — namely, that you’d make out a case of — of your case excluding because of a religious affiliation, but merely because you can go into the Court to have it reviewed because that could be part of due process.

Herbert Monte Levy:

Well, I think for one thing that the denial of the remedy and the unavailability of the remedy might be considered as state action, an endorsement of what the board did.

Yes, sir.

Felix Frankfurter:

Well, yes, but — but the Board — I’m asking whether the procedure, whether merely saying, “I have a right to have a court review of this.”

Never mind what — what they did.

I’d like to have a court pass on it.

I would like to dissociate myself with — within the (Inaudible) case, that alone has the extension.

Herbert Monte Levy:

I really will have a difficulty in saying — in saying that’s your answer.

Herbert Monte Levy:

My feeling would be that the Court could — that the man could say that I should have some right to have the Government run governmental affairs and that, it’s an abuse of due process where I’m given no remedy of any sort from the action of a body which has no standards of any sort.

And I would say that in that case, they could come in.

Felix Frankfurter:

This party — gentlemen, he stand in the courtroom.

Herbert Monte Levy:

Well —

Felix Frankfurter:

Never mind that.

I don’t want to know.

Herbert Monte Levy:

I’m — I’m not sure I — that is in this case.

In any event, it’s a rough question, but I don’t think that’s present in this case at all because here, the —

Felix Frankfurter:

If there is something, I think I have to face that in order to — this argument, in order to ascertain the problem, that means if you slurred over — slurred over in this case, slurred over the private case, what is the relation of this Court is to the State’s control over the body?

Herbert Monte Levy:

Well, I think that this case — to use your analogy, sir, I think this case would be the case where that board uses the standards of religious belief or political belief.

Felix Frankfurter:

(Voice Overlap)

Herbert Monte Levy:

And in that — that’s right.

And in that particular case, of course, the initial question of whether you could make the delegation wouldn’t arise, the real question would be the standards that they could use.

Felix Frankfurter:

So what you’re saying is that due process can within itself, the protection against any — against arbitrary action in the exercise of power if you could ever have the power.

Herbert Monte Levy:

Exactly, sir.

Felix Frankfurter:

I understand that proposition.

Herbert Monte Levy:

Right.

Felix Frankfurter:

I believe in that.

Herbert Monte Levy:

And I think here, this was clearly a violation of due process, which is of course the basic theme of the entire argument in the brief that I trust here.

William J. Brennan, Jr.:

What — what is the function of the Bar Committee in the admission to the Bar of New Mexico or indeed any state?

Herbert Monte Levy:

Well, I imagine it varies from state to state.

In New Mexico, the function of the Bar Committee, as I understand it, is to make recommendations.

In page 42 of my opponent’s brief, which I happen to have handy, so I quote from that one, the statutory provisions are quoted.

“With the advice and approval of the Supreme Court, the Board of Commissioners of the state bar shall have power,” and then I’m skipping some lines, “to recommend such as fulfill the qualifications to the Supreme Court for admission to practice under this Act.

The approval by the Supreme Court to such recommendation shall entitle such applicants to be enrolled,” etcetera.

Harold Burton:

And they conduct the examination?

Herbert Monte Levy:

That’s right.

Harold Burton:

Now, if — if they found that an applicant had not passed his bar examination, will their decision will be final?

Herbert Monte Levy:

Well —

Harold Burton:

It would — they appeal that to the Court — to the Supreme Court?

Herbert Monte Levy:

That wouldn’t quite come up because they test the character qualification before the bar examination in a state.

Harold Burton:

But they also — I don’t know, but I take it that they have a mental examinations on it.

Herbert Monte Levy:

A mental examination?

William J. Brennan, Jr.:

Examination for the bar.

Herbert Monte Levy:

Yes.

Yes, a written examination.

Harold Burton:

And does a — must a man pass that to their satisfaction?

Herbert Monte Levy:

My friends from New Mexico told me, yes.

Harold Burton:

It seems to be obvious that he would.

Herbert Monte Levy:

Yes, sir, exactly.

William J. Brennan, Jr.:

Every bar that — every bar that I know of —

Herbert Monte Levy:

Sure.

William J. Brennan, Jr.:

— have to pass the examination.

Herbert Monte Levy:

Surely.

Harold Burton:

So, they determine that question of fact.

Herbert Monte Levy:

That’s right.

William J. Brennan, Jr.:

And then what — what of the question of whether they’re of good character, is that also a question of fact?

Herbert Monte Levy:

Yes, I think so.

William J. Brennan, Jr.:

Is there’s any evidence at all of bad character, they waive like a jury?

Herbert Monte Levy:

Yes, as I understand it.

William J. Brennan, Jr.:

And whatever evidence then we can’t — we go behind their determination if there’s any evidence of the fact or do we weigh it over again?

Herbert Monte Levy:

Well, I don’t think it’s a question of weighing it over again, sir.

Because I submit here, first, there is no such evidence and that the real question is —

William J. Brennan, Jr.:

You say there is absolutely no evidence?

Herbert Monte Levy:

That’s right.

William J. Brennan, Jr.:

It’d be like a tort of action where there is no evidence of negligence.

Herbert Monte Levy:

No, I think it goes one-step further because here, the questions are the standards that they used.

If you had a tort of action of negligence —

Harold Burton:

Well, you have to establish the tort action, as I understand it, is negligence.

Herbert Monte Levy:

That’s right.

Herbert Monte Levy:

Now, let’s — let’s suppose we have that situation and the judge made a ruling that there is no evidence here to support the plaintiff because the plaintiff — we find the plaintiff to be of bad moral character since he’s a Jew or a Catholic, then you have this case.

Harold Burton:

What — what they’re determining is whether it’s moral character.

Herbert Monte Levy:

That’s right.

Harold Burton:

That — that’s the same as the negligence.

Herbert Monte Levy:

It’s a question of whether there’s a reasonable relationship to — of what — of the standard that they are using to the question that they applied.

Harold Burton:

But a part of evidence put in that wouldn’t be evidence of negligence.

Herbert Monte Levy:

Yes, sir.

Harold Burton:

But if you do have evidence of negligence then the determination of the jury is final.

Herbert Monte Levy:

Again, in that particular case, there is no real constitutional issue that’s raised.

Here, the whole question is the standard that is being used to determine whether this man has bad moral character.

These standards all trespass upon the Fourteenth Amendments — Fourteenth Amendment, the question of due process, reasonable relationship, shocking the conscience and all of that.

The —

Harold Burton:

How — how do we know what their standards are?

Herbert Monte Levy:

Because they tell us, sir.

They say that in the language that I quoted from before, that this — on page 150, “This conduct of petitioner, referring to the past membership in the Communist Party, this conduct of petitioner together with his other former actions and the use of aliases, and record of arrest, and his present attitude towards those matters, which there isn’t any indication of, were the considerations upon which application was denied.”

That is spelled out very, very clearly.

Harold Burton:

Well, do you think they are standards rather than evidence?

Herbert Monte Levy:

That’s right.

This is purely a question of the standards that they used.

This is why I say there is no question of burden of proof or of evidence in this case.

Purely —

Hugo L. Black:

It’s the only way you can determine what standards they used to see what language they used?

Herbert Monte Levy:

No.

Hugo L. Black:

Wouldn’t you also determine it by what they did on the evidence that was before them?

Herbert Monte Levy:

Very definitely, sir.

That’s why in response to Mr. Justice Harlan before, I began to indicate that if the Court had attempted to avoid the constitutional question by changing the facts or making a factual determination, which was obviously completely unsupported by the record, that put in your terms, the constitutional — what they determine would be judged by this Court on the basis of what they did or put in the way I had formulated and previously, the court below could not circumvent this Court’s constitutional jurisdiction by such method.

Hugo L. Black:

If in a negligence case was mentioned which is rather difficult to draw closer now, isn’t it?

Herbert Monte Levy:

Yes.

Hugo L. Black:

What if the only evidence was that the man was negligent because he belonged to one church instead of another, they relied on that entirely, nothing else went in except that he belonged to one church and it was a hotly contested issue on that, and was said that he was guilty of negligence because he belonged to that church?

I suppose you would say that the standard there would be pretty clearly shown by the evidence that was introduced in the finding of the jury.

Herbert Monte Levy:

Very clearly, sir.

Hugo L. Black:

And may I ask you one other question?

There is one page of your argument here that I’m not sure about.

There’s one page of your argument that rest on the premise.

The record as a whole shows that this man was excluded from the practice of law substantially because it would not have been but he belonged to the Communist Party at the time when it was legal for him to belong to the Communist Party in the State of New Mexico?

Herbert Monte Levy:

It’s very definitely.

Hugo L. Black:

On that phase of the case, does the Garland case have anything to do with it, Ex parte Garland?

Herbert Monte Levy:

Yes, I think it has somewhat more than a mere something to do with it because in the Ex parte Garland case, the Court did hold.

This Court did hold there that the past acts of a person, even in supporting the revolution or the civil war against the North, bore no reasonable relationship to his qualification to practice law or following ministry.

Hugo L. Black:

In that case, as I recall it, the theory was not that he believed in revolution but that he engaged in it.

Herbert Monte Levy:

Yes, that’s right.

He had actually acted and participated in it.

We would have the same case here if this man had been knowingly a member of the Party and had participated in its illegal activities, which he didn’t even do.

Hugo L. Black:

Is there any evidence that he did?

Herbert Monte Levy:

No.

The only evidence that there is in regard to his Communist Party activities, is what he tells us and what he tells us who — and his word being accepted all the way through, is that he was active in the labor movement.

That in fact, when he organized the union he was so knowledgeable of the Communist methods that he even delivered the union that he organized right into the lap of the AF of L.

And his organizing of the unions was for the purpose of advancing the course of the working men.

So that I think it is quite clear here that this is one-step worse than the Garland case.

In the Garland case, it was depriving a man of a right or privilege of practicing law or following ministry because of his past acts which were concededly illegal.

Here, this man would be deprived of his right or privilege to practice law because of a past affiliation which was perfectly legal and without scienter.

Hugo L. Black:

Would there have been any difference you suppose, the holding in the Garland case if instead of saying they were — disbarred him because he did engaged in a rebellion.

They had found that because he did engage in the rebellion, that made him have a bad character, a mark bad moral character?

Herbert Monte Levy:

I’m sure that would mean no difference at all.

Hugo L. Black:

Is there any indication in the opinion that the result could have been changed by putting it on the standard of good moral character, rather than the fact that he was engaged in rebellion?

Herbert Monte Levy:

Not the least indication, sir.

I might say, well, we’re on the —

Hugo L. Black:

Well, if that — if it’d be — if you accept the premise — I don’t know whether it should be or not, I’m not saying it should, but if the premise be accepted that a man could not be barred from the practice of law, wholly because he engaged in rebellion because that was not the rule at the time he engaged in the rebellion, do you accept that?

Can the effect that he did engage in a rebellion or didn’t believe in a rebellion be used as a partial support for disbarring him on the ground that he had bear part to?

Herbert Monte Levy:

No, I don’t think that any inference could be drawn of bad moral character or as a part of the evidence to be used against him, because again, there was nothing in what that man did to indicate bad moral character.

Herbert Monte Levy:

The acts that he committed were perfectly consistent with good moral character.

Hugo L. Black:

Well, I suppose there are millions of people in the United States that thought that a man who engaged in rebellion, because of rebellion, some people have a mindset they could think of, if whatever it was, I suppose there were millions who did think that all the people who engaged in that were of bad moral character.

Herbert Monte Levy:

And there were millions who thought that what the people on the North did showed that they were bad moral character too.

I think the conclusion to be drawn from that, sir, is that the Court — no court can make a political judgment.

And from a political judgment of morality, and from that draw an inference as to a person’s good or bad moral character, I would not, for example, say that a person who believed in what Senator Joseph McCarthy was doing could be by virtue of that, said to be a person of bad moral character or that this was an evidence of his bad moral character for the reason that I think that no court should trespass upon the political area of thought in determining bad moral character.

As distinguished —

Felix Frankfurter:

But that was in the Garland case.

The Garland case had a very important ingredient.

The President granted a full pardon.

Herbert Monte Levy:

But the basis of the decision did not rest upon that at all, sir.

Felix Frankfurter:

I didn’t say it rested upon it.

Herbert Monte Levy:

That’s right.

Felix Frankfurter:

That was a very important ingredient and we don’t know what could have happened considering there were four parts of dissent in the sentence if they haven’t been approved properly.

Would you say it didn’t rest on it?

The Court talked about it.

Herbert Monte Levy:

The Court talked about it, but in its reasoning and the ratio decidendi after its opinion, they made no aversion to that.

Felix Frankfurter:

But I have a strange note when a Court talks about something, it doesn’t because they deemed it relevant.

Hugo L. Black:

Do you think that necessarily follows (Inaudible)

Felix Frankfurter:

I should like —

Herbert Monte Levy:

No.

[Laughs]

Felix Frankfurter:

I don’t know about some facts, but I can be judged by that standard.

Herbert Monte Levy:

In fact —

Hugo L. Black:

Even if one is judged by that standard, can one assume that that is always the case?

Herbert Monte Levy:

Oh, definitely not.

I — I remember, sir, in fact, when I argued Newark v. Hutchinson before the — I mentioned to this Court that Mr. Justice Frankfurter asked me two particular questions, saying I know these are irrelevant but let’s clear the woods.

And again, I don’t think therefore that the questions had anything to do with your decision in Newark v. Hutchinson.

Felix Frankfurter:

All of the opinion is much contested?

Herbert Monte Levy:

No, they aren’t, but —

Felix Frankfurter:

Questions are intended to elicit what the help accountant can give.

Herbert Monte Levy:

That’s right.

Felix Frankfurter:

Sometimes, an irrelevant question brings out a surprising answer.

Herbert Monte Levy:

That’s right.

But where the theory of the case is entirely set forth and does not at all depend upon the facts recited.

I don’t think you can say that the facts recited control the theory.

I wouldn’t think that — I wouldn’t try to distinguish a case in that basis myself.

I might try it as a lawyer but I know I shouldn’t.

Felix Frankfurter:

Not — not unless you thought it was relevant, then you would.

Herbert Monte Levy:

No.

No, I wouldn’t say that.

I might try it but I wouldn’t expect —

Felix Frankfurter:

(Voice Overlap) —

Herbert Monte Levy:

Yes.

Maybe even if I did stretch a point and tried it, I wouldn’t expect the Court to follow me.

I think also —

Felix Frankfurter:

It’s clear to think that it made no difference.

There were full pardon in those cases that really could draw out a very important fact that’s set forth because it’s irrelevant.

I’m not protesting from other things that were said, particularly by a judge who has given the Court a reply.

Herbert Monte Levy:

Well, even if it were irrelevant, let’s assume that for the purposes of argument, I think that if you could say it was relevant, you had in effect the same situation here where there was no illegality at all in the Communist Party during this man’s period of membership.

There was nothing, even to pardon.

It’s an even better case.

And this was in the popular front period too.

Also, of course, this —

Felix Frankfurter:

Is that term of art, a popular front?

Herbert Monte Levy:

Popular — it’s not a term of art, it’s a political term.

And this of course shows the difficulty of getting into this area.

I think you can look into the Communist Party area to determine illegality.

Felix Frankfurter:

But why don’t you rest on what a good lawyer states instead of getting off to — but I regard as partly saying that this was a legally recognized party.

Herbert Monte Levy:

That’s right.

Felix Frankfurter:

Why it’s not a good lawyer’s statement instead of getting off that this was a popular front area?

Herbert Monte Levy:

Well, I think you’re quite right, sir.

I think also that what the court did below is to fail to take into account the change in this man and the various opinions that have been handed down by members of this Court.

In the Garner case, for example, the — one of the reasons this Court upheld the oath was that it had no reason to suppose that the oath would affect adversely those persons who, during their affiliation with the prescribed organization, were innocent of its purpose as Schware, or those who severed their relations with any such organization when its character became apparent, as did Schware.

And again, Mr. Justice Burton in that case construed the oath differently than did the majority of the Court and voted to thrust it down.

He said as follows, “The oath is so framed as to operate retrospectively as a perpetual bar to those employees who held certain views at any time since the date five years preceding the effective date of the ordinance, at least no room for a change of heart.”

The court below do not consider the change of heart.

It calls for more than a profession of present loyalty or promise of future attachment, so did the court below.

It is not limited in retrospect to any period, measured by reasonable relation to the present did owe for the court below.

It took actions from 15 to 25 years before and rested entirely on that basis.

In time, this ordinance will amount to the requirement of an oath to be defined that has never done any of the prescribed acts.

And this of course is precisely what the court below really required.

Hugo L. Black:

Did they require him here to make an oath that he had not belonged to the Communist Party like you just said?

Herbert Monte Levy:

No, there was no requirement in New Mexico law or in the application form or anything for that.

Hugo L. Black:

If he had since there was nothing illegal about what he did so that he had to ask for a pardon, what would have been the difference between that case and the Garland case, which I rhetoric?

Herbert Monte Levy:

I don’t think there would have been any difference at all, sir, except that this would be a stronger case and that here you have a measurable period of a decade or more years during which this man has lived a blameless life and the fact that he is being judged entirely on the past.

In the Garland case, you — if I remember my dates correctly, the dates of consideration of admission to the bar were very close to the dates of the rebellion or the civil wars, that there was no period of time really for a man to prove himself.

Hugo L. Black:

I don’t recall.

Had the priest also been pardoned in that case, the other case?

Herbert Monte Levy:

I’m afraid I don’t recall that either.

Hugo L. Black:

Probably (Inaudible)

Felix Frankfurter:

I should think restricting a case to what it decides doesn’t indicate (Inaudible) one as I did.

Hugo L. Black:

I agree with it.

Herbert Monte Levy:

[Laughs] I do too, sir.

Hugo L. Black:

It might indicate in the Court to live a different approach.

Herbert Monte Levy:

I think in some, we can say that what the Court did was to rest upon this past membership in a concededly legal political party without any evidence of scienter of any evil motivations.

I might say just to clarify the facts that I think my opponents perhaps give themselves away, in their brief in page 28.

I’m talking about scienter, right at the top.

There can be no real doubt of the validity of a finding of scienter in this case.

This is not a case like Wieman v. Updegraff in which knowing and unknowing participation and proscribed affiliates of the Communist Party were like condemned.

There would appear to be no sensible reason why the principle of that case should be applied at all to membership in the Communist Party as distinguished from its affiliates.

Herbert Monte Levy:

Unwitting membership in the Communist Party seems to us, Mr. Chief Justice Stone, preposterous.

They cite Schneiderman where of course Chief Justice Stone did not say that but said that a man who distributed particular parts of Communist literature advocating certain things should be held for knowledge of those at the parties (Voice Overlap) —

Felix Frankfurter:

If it would then help you out, why don’t you write down the decision?

Why do bother about the dissent?

It’s not the tendency of the bar.

Court opinions are all the same.

Herbert Monte Levy:

I’m quoting from my opponent.

Felix Frankfurter:

The prior decision and strongly as I believe because they’re undecided —

Herbert Monte Levy:

Oh, yes.

Felix Frankfurter:

— do I follow the sentences?

Herbert Monte Levy:

It was my opponent who quoted it.

[Laughs] I am just mentioning that here actually —

Felix Frankfurter:

But perhaps everything that anybody says you are.

Herbert Monte Levy:

Yes.

Felix Frankfurter:

I thought an economy of proper word would indicate the concept.

Herbert Monte Levy:

Oh, I agree, sir.

Hugo L. Black:

I don’t think it’s illegal if you mention what you’re saying, it might be undesirable.

Herbert Monte Levy:

But for my opponent to mention it, I am actually —

Hugo L. Black:

Would you go to that figure there?

Herbert Monte Levy:

Sure.

This is a hand-me-down mention just in terms of showing that the court — the court below is not even concerned with the problem of scienter, so that even if these were an illegal party at the time this case would — the decision below requiring the phase of Wieman v. Updegraff.

They claimed that there was scienter.

My opponents claimed it based on an examination of the petitioner at pages 45 through 49 of the record, in which they say, “Look, he knew all about the Communist Party.”

But of course the questioning, I won’t bother reading it.

It’s too lengthy.

But the questioning deals solely with questions like if you are a true Communist — if you are a true Communist, then certain things follow, what is contrary to the principles of Communism and so on.

In other words, they talk all about — they are asking Schware, what does he think of the Communist Party today.

And he tells them, he’s obviously knowledgeable, he tells us he reads both Communist literature and the material of the House Committee, an Un-American Activities, and he sets forth his knowledge of what the Communist Party is, all in the present tense.

This, my opponents contend in the brief indicates that in 1932 to 1940 he knew what the Communist Party was about.

Felix Frankfurter:

Well, that’s your position in effect the same as Jews for being a man of idealistic creature, he believes heaven and earth and this is to usher in.

Herbert Monte Levy:

And the record shows this.

Felix Frankfurter:

But then, he discovered that it wasn’t heaven and earth.

Herbert Monte Levy:

Right.

Felix Frankfurter:

But he did think it was during that period and he dissociated himself.

You argued effectively as you could, but he was a member of the Party.

Why then puts around with stuff that really weakens your argument about that?

Your argument is that during the critical — during the period in question, he was a member of the Party which had legal stand in this country —

Herbert Monte Levy:

Correct.

Felix Frankfurter:

— you promoted for him in every state or one state with the union, that he — he severed himself from it unquestioningly because there’s nothing in the record to indicate he did it and that’s your position, isn’t it?

Herbert Monte Levy:

Correct, sir.

Felix Frankfurter:

Well, then, why pass around the (Inaudible) whether he did or did not (Inaudible)

He must have had scienter when he dissociated himself with that but he indicated you’ve known it was something that he finally wasn’t.

Herbert Monte Levy:

That’s right.

At that time he did.

Correct, sir.

If — I should like to reserve the — about three more minutes that I have left.

Earl Warren:

You may, Mr. Levy.

Herbert Monte Levy:

Thank you, sir.

Earl Warren:

General Standley or Mr. Sloan, whichever one.

William A. Sloan:

May it please the Court.

This is a review of a finding of fact made by a State Supreme Court.

The manner, in which the procedure in which the finding of fact was made, was not a typical lawsuit.

It was not an adversary proceeding and issues weren’t framed, and the decision was not very much like that in an ordinary common law action.

The procedure is that the — that a — an applicant applies for admission to the bar.

There is a — no contrary pleading, no issue made up and the applicant comes to the Committee for the purpose of satisfying the Committee, that — that he has the requisite, moral character.

The Committee makes a determination on that in the absence of anything in the nature of issues.

After the determination was made in this particular case, the Committee decided adversely to the petitioner and advised him of it.

Subsequently, he asked for a hearing and again, a hearing was held without any further documentary alignment of the issues and the determination was reaffirmed.

Then, he petitioned for review to the Supreme Court of New Mexico.

Now, the Supreme Court of New Mexico in this case has decided what the procedure in the case should be.

William A. Sloan:

There was no rule or statute that established the procedure and the procedure appears to be a petition for review.

To that petition, the bar examiners filed a response.

And in that response, there were admissions made concerning the truth of the matters that were testified to and the matters that were stated in the application.

Now, it is a fact that those are in the record.

Actually, those admissions were disregarded in the subsequent hearing before the Court and they did not fulfill the function of pleadings in a normal case.

Ordinary pleadings fix the issues in advance of a hearing and as a consequence of that notice is given to the litigant that there — as to the issue as to which he will present evidence.

The response that was filed in this case was not a notice in advance of hearing.

It was a notice after all the evidence had been received, and the admission in those circumstances was not considered by the Supreme Court in the manner that counsel has tried to use it in his argument here as in effect changing the rule of law, that the burden of proof is on a petitioner to establish his moral character.

Now, this is a matter.

I submit that it’s a matter of a law of New Mexico and the manner in which the State of New Mexico Supreme Court addressed itself to this problem.

I submit it’s the procedural framework on which this Court should also decide it.

And our Supreme Court held and its holding is not at all unusual or different from that in other jurisdictions, that the — that by applying for membership in the bar, an applicant thereby places his moral character in issue.

And thereby, submits himself to a burden of persuasion, not a burden of going forward but the burden of persuasion in a broad sense of satisfying the bar examiners that he has a good moral character.

Now, that particular issue has been decided adversely.

Felix Frankfurter:

May I —

William A. Sloan:

Yes, sir.

Felix Frankfurter:

— just disturb your argument that did this.

Tell us what you conceive to be the decision of your Supreme Court which is here for review and what the issues are in your rule that we have to adjudicate?

Could you do that?

William A. Sloan:

Yes, Your Honor.

Felix Frankfurter:

No argument but just state the proposition.

William A. Sloan:

Yes.

I understand that.

The determination of the Supreme Court of New Mexico is best stated in the last page of the original opinion.

It says that it had for determination before it the question of whether the Court had a conviction that the plaintiff or the petitioner was of good moral character, and they found that they did not hold that conviction.

So, the — the determination of the Supreme Court boldly stated is that they did not consider that the petitioner had satisfied the burden of persuading them of good moral character.

Now, the question I submit before this Court is, was that determination by the Supreme Court of New Mexico wrong as a matter of law?

That is an answer to your question, Your Honor.

Felix Frankfurter:

Well, if — if we have no record beyond that arbitration, if we just had that decision of your Supreme Court and no record, then we couldn’t tell, we couldn’t judge the decision by a record, which supposedly sustain it.

But we do have a record.

William A. Sloan:

Yes, sir.

Felix Frankfurter:

Now, in the light of that fact, could you particularize or subdivide your general statement which I had set.

Our question is whether that decision with this petitioner who offered himself to admission did not have the requisite of moral character.

In as much that there is no record to supposedly sustain that, what issue does the record present in order to — not merely to shock him but to define the issue that are embraced in that general conclusion?

William A. Sloan:

Well, I think that the bases of the Court’s decision are clear from the opinion of the Court.

And I think those bases in all fairness include four particular things.

The Court considered that being a member of the Communist Party in the circumstances of this particular case and evidence was something from which an adverse interest — inference touching moral character could be drawn.

Secondly, that the history of the use of aliases by this particular petitioner was something from which adverse inferences could be drawn.

Thirdly, that the record of arrests without prosecution or conviction in these circumstances of this particular case was something from which an adverse inference could be drawn.

And finally, that portions of the petitioner’s account of himself as expressed in the application and in the — in the evidence he gave before the bar examiners also, and taking all of those things together and not relying on one or the other.

And I might say not trying to ensure that only orthodox people become members of the bar.

The Supreme Court of New Mexico found that it was not satisfied of the moral character of the applicant and determined that he — the action of the bar examiners in not permitting him to take the bar was warranted by our law.

Now, that —

Felix Frankfurter:

By your — I thought your position is that, you said a minute ago by taking them all together that (Voice Overlap) —

William A. Sloan:

Yes, sir.

Felix Frankfurter:

— them together.

William A. Sloan:

Yes, sir.

Felix Frankfurter:

In other words, they were part of it.

William A. Sloan:

That is correct.

Felix Frankfurter:

I now open to this Court to ask them whether there were any sticks in these bundled.

And therefore, whether there is a bundle?

William A. Sloan:

Yes, sir.

Felix Frankfurter:

At all, specifically.

William A. Sloan:

Yes, sir.

Felix Frankfurter:

In short, specifically.

Do you — do you agree or do you think it’s appropriate, almost necessary for us to examine each one of these bases to see if there’s any validity to each one as a matter of law, namely, is there a rational relation to the first one, to the membership to the Communist Party in circumstance for this record during the period that said, “Is this –“ do you think that is the issue which raised that that is the matter which raised this question of law —

William A. Sloan:

Yes, sir.

Felix Frankfurter:

— both in here for determination.

William A. Sloan:

Yes, sir.

I would think that is true.

William A. Sloan:

In other words, I would think that if any one of those grounds was an unconstitutional ground, an improper inference, then it would be appropriate for this Court to review it and so hold.

I have —

Felix Frankfurter:

What if I’m wrong, you can sue me —

William A. Sloan:

Yes.

Felix Frankfurter:

— in the grounds to put them out with that three or two —

William A. Sloan:

Well —

Felix Frankfurter:

— (Voice Overlap)

William A. Sloan:

It’s like a court making a finding of fact on erroneous legal principles.

You’d still — you’d still be bound, I think, to — as an appellate court and here an appellate court on constitutional matters, I think the Court would be bound to consider if that is — if any of the inferences on which the Court relied was an unconstitutional inference.

Yes, sir.

Felix Frankfurter:

And by unconstitutional, since we ultimately are on due process.

William A. Sloan:

Yes.

Felix Frankfurter:

The test is whether there’s any relation, a good reason of fact, whatever the phrase may be, arbitrary put it on appellee.

William A. Sloan:

Yes.

Felix Frankfurter:

— (Inaudible)

William A. Sloan:

Yes.

Felix Frankfurter:

What if that leads to that basis is an arbitrary determination, an arbitrary consideration which is the result.

William A. Sloan:

I think that is correct.

Felix Frankfurter:

(Inaudible)

William A. Sloan:

Yes, sir.

Felix Frankfurter:

All right.

William A. Sloan:

Now, I have begun in my argument on making the point that the posture of the pleadings as relied upon by counsel for the petitioner really was not as strong or didn’t — didn’t warrant his claim.

Under the law of New Mexico as determined by the New Mexico Supreme Court, those admissions in our response to the — to the petition for review filed in the Court did not limit the issues and changed the burden of proof.

And I think that by answering Mr. Justice Frankfurter’s questions, I have covered the next matter that I intended to cover, to wit the nature of the controversy that is before this Court for determination.

Now, I might say in passing just to point out the fact that the pleadings as relied on by counsel are not so important, is that the original pleading which is filed by the petitioner in this case, the — the petition for review contained many matters which are not now in consideration, including a claim that the standard of good moral character which is applied in New Mexico is unconstitutionally vague and void for that reason.

That has been abandoned.

A number of things have happened, in other words, since the pleadings were filed which do pinpoint the issue in the manner of which I have told the Court in response to Judge Frankfurter’s questions.

Now, it is important that the burden of proof is on the petitioner at all times and that it is the burden of persuading the fact finder of the truth of his position.

That particular burden results in — in part from the circumstances of the case.

There was no evidence introduced against the petitioner in this case.Counsel has mentioned that several times.

William A. Sloan:

From the nature of the inquiry, there ordinarily is not an inference from that circumstance.

It’s not permissible that there was something else behind the door or under the table that they looked at.

The — the burden, having placed the — his character in issue in the manner stated by the Court, having applied for admission to the bar, he assumes the burden of demonstrating his good moral character.

And adverse proof is not necessary and under the law of New Mexico, and I think under general law, a party having the burden of proof is ordinarily not entitled to insist on the belief of his testimony if there is any rational basis for questioning it.

Now, the effect of —

Was there anything said by your court that indicated that they ruled against him on the question of his credibility?

I didn’t see anything of that kind.

William A. Sloan:

In the opinion itself, Your Honor, there is not a statement to that effect.

Nothing at all?

William A. Sloan:

How — well, there are things that reflect upon the credibility of the witness, which the Court mentioned.

The Court did mention the fact that he had given inconsistent accounts of the reason why he first adopted an alias.

The Court mentioned that in the opinion and I take it that that was some reflection on his credibility.

I think also that the Court was referring to that in a statement that the Court made to the effect that it — that his general attitude towards these several matters, which were under — under discussion, reflected an improper present attitude as distinguished from improper past conduct.

I think that while it isn’t spelled out like findings and rulings, it is an opinion of the Court and perhaps is cryptical.I do think that the Court did have reference to that, yes, sir.

Now, the — it is the position of the respondent in this case that the fact finder, the — the bar examiners first as the recommender to the Court and the state — and the State Supreme Court of New Mexico was not bound to accept his testimony.

Particularly, he was not bound to believe all the exculpatory things and all the inferences from exculpatory things that he said.

If that is not appreciated and if the approach is not of that kind, is not kept in mind, the effect of it is to — the effect of that procedure, which is what the petitioner in this case suggest to this Court, would be substantially to reverse the true rule of law and to place the burden of proof on the bar examiners and on the state authorities to demonstrate lack of moral character.

Felix Frankfurter:

Well, isn’t it — wouldn’t be unallowable for us to say?

For all we know, the bar examiners, the State Supreme Court, his belief is severed from the Communist Party and infer — they infer that he’s a Communist to this day, would that be allowable or not, in this record?

William A. Sloan:

I would think that that would not be allowable because I think that that — that there ought to be something in the record.

Now, I am — I believe that it isn’t necessary to do that in this case.

You have the burden of proof and he has to satisfy the Court of his good moral character.

And I believe that in entertaining the dubiety that they had concerning his character, that something of that kind may have entered into their thinking.

They don’t — do not spell it out in the opinion, but it was one of the things.

The — the end conclusion of the Court was that they were not satisfied of his good moral character.

Felix Frankfurter:

I understand that you state quite candidly that in order to find out whether the end conclusion had any basis, we have to take each — each ground for the end of conclusion.

The story of the building was directed, is that right?

William A. Sloan:

That is correct, Your Honor.

Felix Frankfurter:

Well, on the first one, you would say there’s nothing, that we would not be one of us to say that for all we know the State Supreme Court, this belief is — his involvement in the association, and therefore —

William A. Sloan:

I think that I would —

Felix Frankfurter:

— they would assume that he was a Communist at the time that this came up, which was then raised of the fact that the bases were rejected, but I understood to say that we could not make such a gross opinion —

William A. Sloan:

Yes, sir.

I think that is correct.

Felix Frankfurter:

— and not reject any subject information in sustaining the first time.

William A. Sloan:

Well, I would certainly do so in reviewing this evidence.

I think that is only fair, Your Honor.

Hugo L. Black:

And suppose — suppose it should be thought that the Court or the State was without authority to keep a man out of the bar or to put him out of the bar because he hadn’t belong to the Communist Party back in the time when it was legal.

What in your judgment would that dispose of the case?

William A. Sloan:

If that were the ruling of this Court, it is clear that our Supreme Court gave evidentiary and legal weigh to that circumstance in evaluating the man’s moral character.

And if you cannot make an inference from Communist Party membership to moral dubiety, I do think that — that that would require a reversal and remand of the case for further consideration.

The Court unquestionably did consider that matter and it is my position that that inference is permissible and that an inference of that kind does not at all violate —

Felix Frankfurter:

You would — do I infer from that statement that if this Court should reject, irrelevant to the extent that it’s not the — it’s impossible to take that into account.

That if this Court also reject round one, it wouldn’t have to bother about the other because it couldn’t tell what the dissent to that first round entered into the final decision.

That’s what —

William A. Sloan:

I don’t really —

Felix Frankfurter:

(Voice Overlap) —

William A. Sloan:

— know how that works.

As a matter of constitutional law, I would certainly think that it would be like an erroneous ruling of law by a Court in the course of finding a fact and I think it would officiate it.

I mean, that would be —

Felix Frankfurter:

That’s followed by the other items?

William A. Sloan:

I suppose that if the Court wanted to put the decision on that ground and that alone, that it would be free to do so, yes.

Felix Frankfurter:

I mean that — let me put it to be more accurate.

I infer from that of Mr. Justice Black that it’s sufficient to undermine the legal validity of the — of the decision because it did enter into them.

Is that right?

William A. Sloan:

Yes, sir.

I think that is correct.

Now, it is — as I have already stated to the Court, the Court did give value, evidentiary value to the matter of Communist Party membership and we believe that considering the nature of the Communist Party, the nature of the congressional findings on the Communist Party, the nature of the decisions of this Court relating to the Communist Party, that adverse moral inferences can be drawn from membership in the Communist Party, particularly on the two grounds of truthfulness and loyalty, those two particular grounds.

I submit to the Court that those are matters that are relevant to the office of an attorney.

I think that a State which protects itself from disloyal or untruthful attorneys, and makes loyalty and truthfulness a measure of the power of — a measure of admissibility is doing nothing forbidden by the Due Process Clause.

Now, there are — there had been some comparisons made here between this, and Ex parte Garland, and Missouri versus Cummings.

William A. Sloan:

I do not think that those cases present the same kind of moral issue that the present case presents.

I think that in Ex parte Cummings and in — in Missouri versus Cummings and Ex parte Garland, essentially, the offense which was proscribed and for which the test oath was adopted was adherence to the southern cause.

The form of words here in question, good moral character was not even used in that case.

Hugo L. Black:

Suppose they had?

William A. Sloan:

Well, if they had and the only proof of good moral character was adherence to the southern cause, then I would say that the use of its — of the term, good moral character would not have made — made constitutional what otherwise would have been unconstitutional.

In other words, that adherence to the southern cause could not be a basis of an inference of immorality.

And I want to make that quite clear, I regard this as a different type of case.

In — in respect to the difference between adherence to the southern side in the civil war and adherence to modern communism, I think they’re utterly different.

And I think that adherence to communism presents moral issues as distinguished from political allegiances.

I think they are quite different, and for that reason, I see no particular trouble for the respondent in this case from Ex parte Garland and In re Cummings.

Hugo L. Black:

But Cummings against Missouri —

William A. Sloan:

Cummings.

Hugo L. Black:

— was largely based on the fact that it was an ex post facto law.

William A. Sloan:

Yes, sir, that is true.

But in the discussion of those two cases, there has been a general tendency to treat them as though they arose under the Fourteenth Amendment.

They — they actually were decided before the Fourteenth Amendment and they are used more or less as a guide to what is due process of law in subsequent decisions.

It is a fact though that Cummings versus Missouri largely related to the ex post facto prohibition in the Constitution and Garland related to the bill of attainder prohibition in the Constitution.

Hugo L. Black:

Well, suppose that your state — sort of — that might had that provided that while it was just stated in an act, I thought it was not illegal to belong to the Communist Party, it was not accord for disbarring or preventing from being a member of the bar in 1942, for a man to be a Communist in 1942.

Nevertheless, legislature hereby enacted that any man who did belong to the Communist Party in 1942, when it was legal, could be denied the practice of law.

What would then be your line of distinction?

Why — why wouldn’t that be an ex post facto law?

William A. Sloan:

Well, I think it would be an ex post facto law.

Yes, sir?

Hugo L. Black:

But you — you draw the line and that you say that you authorized the crime to be immoral of that character belonging to the Communist Party but it couldn’t be found because they belong to the southern confederates.

William A. Sloan:

Well, I think there is quite a difference, Your Honor, because of the fact the question in this case the rule of law has not been changed at all during the course of this entire matter.

During the life of Mr. Schware and for a long time, it has been the requirement for admission to the bar in New Mexico and 47 other states that a person have a good moral character.

Now, the fact that you could not impose a punishment or that the Communist Party is or has been lawful in New Mexico and there have been actually candidates who filed and ran in elections in — in New Mexico during the period that Mr. Schware was a Communist although he was not in New Mexico at that time.

That fact does not, to my pegging, remove the possibility of relevant inferences as to moral character, truly moral character, not political character, not religious or economic character but strictly moral character.

I think that that coupled with the other evidence in this case and not as a matter of adopting of a rule, of general or special application that permits inferences to be drawn.

Now —

Hugo L. Black:

Do you rely for that on — I gather that you rely from the fact that there had been legislative declarations and judicial declarations that the Communist Party was a —

William A. Sloan:

Yes.

Hugo L. Black:

(Voice Overlap).

Well, I suppose 13 states ought to determine to their legislatures and their Supreme Courts that the NAACP was disloyal, that it wanted to subvert the states, the 13 states and that was to declare the truth.

And that the lawyer should go before state — applicants should go —

William A. Sloan:

Who had been a member.

Hugo L. Black:

— to the bar and file, and they showed nothing except that he was a member of the NAACP.

What would you say about that?

William A. Sloan:

Well, I would say that —

Hugo L. Black:

Entered in the time it was legal.

William A. Sloan:

I would say that the inquiry in the case of the lawyer is as to whether he has good moral character, not the quality particularly of the NAACP and that an inference from mere NAACP membership to lack of moral character or doubt of moral character, which is more correctly the question here would be improper.

In the fact that 13 states did so —

Hugo L. Black:

Well, suppose the legislature declared they did found it and the Court declared that they did found it that it’s also was engaged in a conspiracy.

Suppose the Court had found out.

William A. Sloan:

Well, if the NAACP were of a different nature and it was so found by Court to be then I understand it to be, then I would say that you could make the inference.

As soon as it becomes conspiratorial enough, dishonest enough and disloyal enough then maybe you can, at that point, draw an adverse interest — inference.

It’s hard for me to consider the NAACP as a sinister organization as I do regard the Communist Party as a sinister organization.

With respect to the —

Hugo L. Black:

But if — if the legislatures had declared that and the Court had found that they were officers who were in conspiracy, you — you — could you still say that you would — wouldn’t find it a sinister organization?

William A. Sloan:

Yes, I likely would not find it.

I don’t have to agree with a legislature.

Now —

Hugo L. Black:

Neither does a Court in any aspects, does it?

William A. Sloan:

Of course not.

And Your Honor, I should like to point out that I am not arguing that we must decide this case in the way that we have because Congress has done so.

And because Congress has made these findings concerning the nature of the Communist Party of this Court and its judges have made these findings, the adverse is true.

I am saying that if this Court can make the inference from communism to the kind of a conduct that has been recited in the Douds case and in the Dennis case and so on.

And if Congress can make findings that comprise pages of the statutes to the effect that the Communist Party is a conspiracy of disloyalty and dishonesty, then I believe that the bar examiners of New Mexico and the Supreme Court of New Mexico can make a light inference.

Would you say that it was a fair characterization of the New Mexico Court’s decision?

That they in fact said, “Well, here’s a fellow that has been a member of the Communist Party for seven years.

He’s used aliases.

He’d been arrested.

He seems to have been a wandering sort of a fellow and really all that adds up to his being a man as an undesirable member of the bar because where there is so much smoke, there may be some fire, you know.”

And they asked you preliminarily whether you don’t think that is — it comes pretty close or isn’t it an accurate rationale of this decision.

William A. Sloan:

Because some of your thinking, I believe, was in the minds of the bar examiners.

I — I think —

Well —

William A. Sloan:

— that the real thing was that they weren’t satisfied that he was of good moral character.

Well, if you take that interpretation in the proceeding, do you think that adds up to a finding of lack of moral character?

William A. Sloan:

They —

Distinguish from a man who is just undesirable kind of man to have in.

That isn’t the text under your —

William A. Sloan:

Oh, no.

— statute, is it?

William A. Sloan:

No, I — I didn’t understand what you meant by the term “undesirable,” Your Honor.

I do not think that our bar examiners for one minute would — would keep a man out for personal reasons.

Well, there wasn’t anything personal about it.

They say this man has a two-checkered career to make a satisfactory member of the bar.

There’s nothing personal about it.

William A. Sloan:

Well —

Do you think our bar is entitled to have something more than that?

William A. Sloan:

I think something —

A man who had this checkered kind of a career.

William A. Sloan:

I — I think something of that kind may have been in their minds, Your Honor, but I still believe that our bar examiners and our Court actually registered judicially in their minds that they were not satisfied with the man’s good moral character.

And our rule has provided for years that when they are not satisfied of good moral character, they will not permit the individual to take the exam.

Now, the other matters that the Court relied upon in the course of its decision and I should make the point that the function of the bar examiners as such is recommendatory only.

They neither admit to the bar nor do they refuse to admit to the bar in a final sense and I might add that they do not disbar lawyers in New Mexico.

All of those functions are reserved to the Supreme Court of New Mexico.

The — the other matters that were discussed by the Court are the use of aliases, the — and the record of arrests, and certain discrepancies and omissions.

Now, these matters are covered in our brief and we believe that they are material.We think that anybody who was admitting any person to an employment or a position would take into consideration and would give evidentiary weight to such conduct as that admitted by the petitioner here.

Hugo L. Black:

Did they rely to any extent on the fact that disconnection of some kind with the loyalist in Spain to the Court?

William A. Sloan:

I think not, Your Honor.

Hugo L. Black:

What did you say?

William A. Sloan:

The lawyers in Spain?

Hugo L. Black:

Lawyer, that he was sympathetic with the loyalists in Spain.

William A. Sloan:

No, I’m sure —

Hugo L. Black:

During the Spanish Revolution.

William A. Sloan:

I’m sure that they did not.

They didn’t mention that and I don’t quite understand your question.

Hugo L. Black:

What are the — what was this Neutrality Act that he violated?

William A. Sloan:

Well, he was charged with violation of the Neutrality Act and in connection with that, he — it is his oral testimony that he violated the Act without realizing that he was doing so.

He says that he did —

Hugo L. Black:

By doing what?

William A. Sloan:

Well, by recruiting — recruiting soldiers for the — the loyalist side in Spain.

Hugo L. Black:

That’s what —

William A. Sloan:

Yes.

Hugo L. Black:

Yes.

William A. Sloan:

That was — that was the conduct which was claimed to comprise a violation.

There is a discussion in the — in the opinions as to whether or not it is in fact a violation, which I think is rather beside the point.

I don’t, I don’t think it is too material whether it was a violation or not.

The — the Court — the Court did consider those arrests and the conduct that led up to the arrest as something from which an inference of adverse to the petitioner could be drawn.

Now, in that connection, I want to point out two things.

First of all, he said that he didn’t know that he was violating the law whether he was or not, he did say that.

In addition to that, he also said that his work in — in recruiting for the Abraham Lincoln Brigade was conducted by the — on behalf of the Communist Party and that his actions relating to these arrests were the result of activity on behalf of the Communist Party.

Now, I think that all of those things are relevant in determining the nature of his Communist Party membership and whether or not he had the scienter which counsel told this Court there was no evidence of.

And they are further relevant to whether or not he was telling the truth at the time he appeared before the bar examiners.

The bar examiners are reasonably sophisticated.

I am sure that they have some misgivings as to whether a person, enlisting or recruiting for the Abraham Lincoln Brigade on behalf of the Communist Party knew what the law of the United States touching recruiting laws.

I’m sure that the bar examiners regarded that as a circumstance which they could evaluate in reaching their general notion that they were dubious of his moral character.

Earl Warren:

Mr. Sloan, you say you — you think it was beside the point of whether he was actually guilty of violating the Neutrality laws or not.Would you — so far as this procedure is concerned, would you say the same thing about his arrest for — for having a stolen car in his possession?

William A. Sloan:

Well, of course not.

The arrest for —

Earl Warren:

Then what — what is the distinction between the two?

William A. Sloan:

Well, I think that the arrest for stolen car on his version of it and we have no other facts that it was taken, the arrest relating for stolen car was just a completely innocent occurrence.

Now, I think that while a person could quite properly have sympathies with the loyalist side in Spain, I may say that I have, rather ardent ones myself, I think that is different from recruiting — recruiting soldiers for — as a part of — for the Abraham Lincoln Brigade as a part of your Communist activity.

I don’t think —

Earl Warren:

But it — that would be true if — if it was proved that he had done it —

William A. Sloan:

Well, he —

Earl Warren:

— or if — if he admitted that he had — had violated the law just as — as it would be if he has admitted he’d stolen the car or you would prove that he’d stolen it.

But it seems to me where there’s an absence of proof as to his violation of the Neutrality Act that an arrest for that — for that cause would serve no greater purpose than would his arrest for stealing a car where there is no proof that he was guilty of it.

William A. Sloan:

Well, I think, Your Honor that is the reason that I want to emphasize that the burden of proof was on him.

The burden of persuasion was on him.

I think it was up to him to explain the circumstances.

The only thing that we know about his arrest in connection with an indictment for violation of the Neutrality Act was that he was doing that work he says himself as part of his Communist Party activity and was governed by their instructions.

That’s all we know about it.

He did not offer any explanation as to what particular conduct he had done.

It can only be gained here and there through the record.

He did not say what he had done and I do not think that in those circumstances, the inferences that can be drawn are entirely exculpatory.

I think that you can, considering the fact that the burden was on him to come forward and explain these things in an exculpatory manner.

I think the Supreme Court in that state of the record is entitled to draw adverse inferences from the lack of proof, instead of being under duty —

Hugo L. Black:

What happened to the charge?

William A. Sloan:

What’s that?

Hugo L. Black:

What happened to the charge?

William A. Sloan:

I didn’t hear what you said.

Hugo L. Black:

What happened to the charge?

William A. Sloan:

It was dismissed by no cause shortly after it — he was arrested on the indictment according to the record, Your Honor.

Hugo L. Black:

Why wasn’t that a pretty good exculpatory statement?

William A. Sloan:

Well, it may have been.

Actually, it was received in evidence and considered.

I do not think that he gave a very good explanation of the conduct that adopted it.

Felix Frankfurter:

Where in the record is the explanation?

Can you quickly tell me (Inaudible)

William A. Sloan:

35.

Felix Frankfurter:

Thank you very much.

William A. Sloan:

All right.

I don’t think that a — that a no-cross wipes out the possible adverse inferences that you can draw upon an arrest by authority of the United States in this case and an explanation that was no more detailed than the one he offered.

Hugo L. Black:

Is anything peculiar — peculiar about that kind of charge that somebody was interested in — in the one side and wanted to help him and try to help him get some people.

Is there anything in that — doing that, that according to the general standards of good moral character would be thought pretty generally that would reflect on a man’s good moral character?

William A. Sloan:

Well, I think —

Hugo L. Black:

I haven’t thought of it in that way.

William A. Sloan:

Yes.

Hugo L. Black:

Not like Steven, isn’t it?

William A. Sloan:

Oh, no.

No, sir.

I do think that the fact that it was a part of the performance of his Communist duties.

Colors, it’s somewhat over a near sympathy.

Hugo L. Black:

Well, that — that gets back to the Communist question of the evidence?

William A. Sloan:

Yes.

I think it does in a measure.

And I do think that —

William J. Brennan, Jr.:

It could in America for either he was recruited in America for either side, the Spanish civil war was illegal, was it not?

William A. Sloan:

As I read the statute, now, there seems to be some nice legal points on that which I have never really spelled out.

But I believe that his statement as to what he did amounted to an admission that he had violated the law of the United States.

And again, the Court did not say, the Supreme Court of New Mexico did not say that by reason of that, he was excluded from the bar.

They took it into consideration along with other things and concluded that they had doubts about his moral character, partly as a consequence of that.

And I believe that taking into consideration, an arrest or a number of arrests in the manner the Court did is something that people do everyday and I believe it is within the realm of permissible state action to do so.

His explanation of his arrest in California, which were a factor in his case which were — was decided upon by the Court, amounted to dismissing the California statute against an offense called criminal syndicalism as though it just wasn’t fair.

It amount to saying that it was perfectly all right to get arrested in California if it was in connection with a Waterfront strike and arrested on a number of occasions and on ascertained number of occasions.

And it also amounted to saying that this was true even though the conduct leading up to the arrests had been conduct directed by and in aid of the Communist Party.

Now —

Tom C. Clark:

(Inaudible)

William A. Sloan:

He had been living under an alias at that time, Judge Clark, and had given an additional alias.

In other words, he was — his true name was Schware.

He had been living under the name De Caprio, Rudy De Caprio, and when arrested, he gave the name Joe Fleari or Joe Fleori.

And he stated in exculpation on that that he gained nothing by giving the police an erroneous name.

I should like to —

Tom C. Clark:

(Inaudible)

William A. Sloan:

Well, with respect to that, he stated that he — that he could not remember which name he had used in the Party.

That was another circumstance in this case —

Tom C. Clark:

(Inaudible)

William A. Sloan:

No, he said that he did not use his real name in the Party, but he couldn’t remember which name he had used during the six years that he was a member of the Party.

He couldn’t remember whether he had used the name De Caprio or Fleori.

It was one or the other and he could not remember which, and that was a statement he made at the second hearing and is in the record, and I think reflects something on his credibility.

Hugo L. Black:

Did he plan that he had used one or the other?

William A. Sloan:

He said that he used one or the other and he could not remember which while in the Communist Party.

Hugo L. Black:

What is then — what —

Tom C. Clark:

(Inaudible)

William A. Sloan:

Well, he was speaking there, I think of the continuous period during which he was in the Communist Party, and he said that he couldn’t remember what name he had used in the Party.

I don’t think he meant in applying in the Party.

Hugo L. Black:

What advantage could he possibly have obtained in his bar association business by — if he didn’t remember which name he’d used, since both of them were assumed?

What possible good did he have done to himself or what possible hurt could he done to the other side by telling them to use one or the other, he didn’t know which?

I don’t quite get your bad inference from there.

William A. Sloan:

Well, the bad inference is —

Hugo L. Black:

(Voice Overlap) —

William A. Sloan:

— that a person —

Hugo L. Black:

— quite a different name?

William A. Sloan:

Yes.

Well, it is very often true on cross-examination that a witness gives an unsatisfactory answer on answers vaguely.

And the bad inferences from the vagueness, the fact that he could have thought up something better to say does not detract from the inference — from the bad inference that you —

Hugo L. Black:

But — but what I was getting at was if that if there’s anything wrong with using the alias, he swore that he’d used the alias, did he?

William A. Sloan:

Yes, Your Honor.

Hugo L. Black:

Would there have been any worse scene, or wrong, or immoral conduct to use the name Fleori or whatever it is rather than the other name?

William A. Sloan:

Not at all.

But if asked for an explanation as to which of two names he used during his six or more years of membership in the Communist Party, and he said, “I don’t remember.

I used one or the other, I don’t remember which.”

I think that that answer is from a fact find as you point, unsatisfactory.

It is not specific enough.

I think that it is a reasonable inference that for — whatever his reason, he didn’t answer the question truthfully.

Hugo L. Black:

Just — just for the pure pleasure of not telling the truth, do you think maybe he gave them one bad alias instead of another bad alias?

William A. Sloan:

No, sir.

I don’t think that’s true.

I think that when you’re questioning a witness, he gives wrong answer sometimes because he isn’t telling the truth and can’t think of a better way out of its difficulty.

And that is one of the things that you gain by cross-examination.

You don’t have to — I don’t think you have to think of it, of a guilty explanation of every — of every unsatisfactory answer the man gave on cross-examination.

Hugo L. Black:

I was just thinking about —

William A. Sloan:

I — I —

Hugo L. Black:

— including a bad answer.

Maybe you have to assume that he’s untruthful in undoing it.

I was really thinking about an article written many years ago by a man who used to be a judge in the Supreme Court of California who lived in Alabama when he wrote it, that (Inaudible), written and found for the first time in Mississippi and Alabama.

That’s the reason I was interested with the —

William A. Sloan:

I see.

Hugo L. Black:

— idea of why you would think he can get an advantage in doing one or the other and why he couldn’t get an advantage, maybe it was just for the pure pleasure of not telling the truth.

William A. Sloan:

[Laughs] I might —

Hugo L. Black:

Is there any other reason?

Earl Warren:

Mr. Sloan, do you consider that the Court took into consideration the arrest in Texas for stolen automobile?

William A. Sloan:

Well, I’m sure they did not.

Earl Warren:

Well, they mentioned that more than once in their — in their opinion, did they not?

William A. Sloan:

Yes, sir, they —

Earl Warren:

What would be the reason for mentioning it if they didn’t consider it?

William A. Sloan:

To give a completely direct and complete account of the record.

William A. Sloan:

I think that they portrayed the whole thing.

They didn’t know a purport to make that a ratio decidendi at all.

I’m sure that they did not.

Earl Warren:

Well, they did — they did say the aliases and they did comment on this —

William A. Sloan:

On the arrest.

Earl Warren:

— during the course —

William A. Sloan:

Yes, sir.

Earl Warren:

— of their opinion and —

William A. Sloan:

No question about that.

Earl Warren:

— and they didn’t exclude that either, did they?

William A. Sloan:

They did not, of course —

Earl Warren:

Take into consideration.

William A. Sloan:

The — the bar examiners made absolutely no contention touching that.

They did not claim in the argument before the Supreme Court that there was anything discreditable about that and at no time has any claim been made of that kind.

I’m sure the Court did not in fact do so.

Hugo L. Black:

There’s only one other question that I’m left in doubt of a little by this opinion.

Now, you could tell me.

Did the bar examiners utilized and read how far consideration in connection of what they did, so-called confidential information about which no information was given to him?

William A. Sloan:

There — that was really to be covered by the — by the Attorney General.

However —

Hugo L. Black:

I beg your pardon.

William A. Sloan:

— the answer is that they did not reach their decision on the basis of confidential —

Hugo L. Black:

Did they consider it?

William A. Sloan:

They — they stated that their decision was not motivated in any way by the confidential information.

That is their statement and the Court didn’t even look at it and the Court considered the matter up fresh.

Did you have a question, Your Honor?

I just want to ask you whether I’m correct in understanding that this Schware did not appear before the Supreme Court.

They didn’t see him, did they?

William A. Sloan:

That is correct.

They did not.

So that their judgment on his moral qualification is based on the reading of the record —

William A. Sloan:

And the —

— entirely.

William A. Sloan:

Yes, and the determination of —

And the determination of the Committee?

William A. Sloan:

Yes, sir, that is correct.

Earl Warren:

Did he indicate the willingness to go before the Supreme Court or an unwillingness or either one of those?

William A. Sloan:

No.

Actually, he applied in this particular manner before the Supreme Court and the matter was argued on the record.

After the Supreme — the original Supreme Court opinion came out then he applied to the Court on rehearing for a leave to appear before the Court.

And that request was denied along with the rehearing, but he got originally, the exactly the kind of a hearing before the Supreme Court of New Mexico as he asked for.

Tom C. Clark:

(Inaudible)

William A. Sloan:

Yes, Your Honor.

Tom C. Clark:

Did they (Inaudible)

William A. Sloan:

Yes.

That is — that was required.

Tom C. Clark:

(Inaudible)

William A. Sloan:

There is no — well — he did disclose all the aliases that appear in the record and he says that he used one of them in the Communist Party.

He did not particularly say which one he used in the Communist Party.

He did not mention the Communist Party in his application.

However, there was no question specifically addressed to membership in the Communist Party and therefore, he didn’t — it wasn’t called for by the questions.

The whole application is printed in the — in the record, Your Honor.

I — I would like to (Voice Overlap) —

Earl Warren:

You — you meant —

William A. Sloan:

— Mr. Standley use the remaining time.

Earl Warren:

Yes, you may, Mr. Sloan.

Fred M. Standley:

May it please the Court.

Earl Warren:

Attorney General Standley.

Fred M. Standley:

Mr. Levy.

The point that I’m going to address my remarks to — well, is the point concerning the alleged confidential information.

Fred M. Standley:

Now, at no point did the Court use the confidential — so-called confidential information in their decision.

The only judge who said that he had even looked at this file was the dissenting judge.

The bar examiners stated in their — at some point in the record, that they were quite sure that the alleged confidential information didn’t have anything to do with their decision either.

Hugo L. Black:

When did they say this and where?

Did they say it before they reached their conclusion to deny him the right to practice law or did they say it —

Fred M. Standley:

I think it was in their findings that the Court —

Hugo L. Black:

In the findings?

Fred M. Standley:

In — in the findings of — when they reached their decision.

Hugo L. Black:

I don’t — I don’t remember.

I was just —

Fred M. Standley:

That’s — that was — that’s my impression, Your Honor.

I’m not — that’s — that’s way up here perjury check.

Justice Harlan asked a question at the outset of where the information came from whether that he was connected with the Communist Party.

It doesn’t appear in the record but I answered the question, I happened to know in — when he filled out his application, the arrest appeared on the application.

The arrests were checked into and the thing developed in there was a part of the confidential information that led the bar examiners —

No suggestion that he was concealing it in any way.

Fred M. Standley:

No.

No, I don’t think — I don’t think he was — on the application, at least, he was concealing it.

As a matter of fact, what Mr. Levy has said, he mentioned it to — the fact to the dean of the law school.

The dean of the law school says, “Go on about your business.

We’ll worry about that when the time comes.”

Or words of that thing.

Earl Warren:

General Standley, I’m not quite clear yet just what this — what position the Board of Examiners took from this confidential information?

If they take the position that they didn’t use it or that they didn’t scrutinize it?

Fred M. Standley:

They did the position that it had nothing to do with their ultimate determination.

Earl Warren:

Well, I know.

But what does that mean?

Does that mean that — could that mean that they — that they read it all and considered it all and then decided that they wouldn’t use it against the man?

Is that what it means or does it mean either they didn’t read it or there was nothing in there that was detrimental to the man?

Fred M. Standley:

Again, that’s a call for the rank.

Fred M. Standley:

It’s kind of a speculation on my part, but I think what that means is that they didn’t consider it, didn’t consider it in the sense of perusing it.

I don’t — I think that that is true of their — of their answer.

However, I don’t know —

Earl Warren:

Why didn’t they say that?

If they didn’t peruse it, why didn’t he say it?

Fred M. Standley:

I don’t know.

I think this — I know, I’ve been a member of the bar examiners in New Mexico.

I’m not — wasn’t on it at the time this case came up but I sat in.

And I know that they usually put to that so-called confidential file is to take — take the file and if there is — there are inferences of bad moral character in it, then you call your witness that you want to use on that.

And I don’t — they didn’t call any witnesses as a result of this so-called confidential file.

Now, the Clerk of the Court does that and not the examiners themselves.

Earl Warren:

Would you — you wouldn’t think that they would send out these letters and ask people for this information and then not read it when it comes in?

Fred M. Standley:

I think — I think that that — I think that certain members — certain of them are read and I think there’s certain letters are called to certain — to the Chairman’s attention, but I don’t think that all of the examiners read all of the letters, no sir.

I think —

Earl Warren:

What would they — what would they ask people to send in that information for if they didn’t read it, rather have a hazard way to —

Fred M. Standley:

Well, I —

Earl Warren:

— to determine a man’s right, isn’t it?

Suppose the letters were good letters, suppose it would help a man —

Fred M. Standley:

I — I think —

Earl Warren:

— and suppose — suppose some of them were bad, do you mean to say that they — that they wouldn’t read them after they had sent out letters to people asking them to give the information?

Fred M. Standley:

I think that — that the letters, Your Honor, are — I know that they are read very thoroughly by the Clerk — the Bar Committee Clerk — the Clerk of the Bar Commission.

Secretary of the Bar Commission as this time one (Inaudible), he is Clerk of the Court also.

And I think that — and I know that a report is made as a result of those letters, but the report is not a report soon as those as this.

It’s — it’s a general type statement and as a matter of normalcy, when nothing comes up of any to — to disturb the Bar Commissioners, the report itself is a sufficient answer.

Earl Warren:

In other words, if there — if the letters are favorable to the petitioner, why the Board never sees them, but if the Clerk thinks they’re unfavorable, why they see them?

Fred M. Standley:

No, I don’t think that is so.

I think — I think that — that the letters in both cases if — when the report is made by the secretary, he states that the general tenure of the bulk of the letters.

And you see a report is also gathered from this reporting service that all — that are pre-made the bar association has used rather than the letters.

There’s — they have two sources of information from the outset in St. Louise or Chicago that reports their findings and also the independent letters.

Earl Warren:

Was there anything in this file adverse to the petitioner?

Fred M. Standley:

Your Honor, I don’t know.

I’ve never seen that in the file.

I was denied access to it.

It was Mr. Sloan in the lower court.

William O. Douglas:

Yes.

Do you have a waiver by the applicant in New Mexico like you do in some state that the — permissible to have — seek the information with regard to him?

Fred M. Standley:

Yes, Your Honor.

That’s — that’s in his application, that waiver.

Now, in the —

Felix Frankfurter:

The applicant — did the applicant, perhaps (Inaudible)

In New Mexico, did the applicant asked for any references or did they know about it?

Fred M. Standley:

Your Honor, as a pro forma matter, we have — New Mexico requires one letter of endorsement and in some of the states — I’m also a member of the Utah bar —

Felix Frankfurter:

Did the — did the —

Fred M. Standley:

— and they would —

Felix Frankfurter:

— applicant gives in, gives the name of somebody who is worthy to have endorsement, is that it?

Fred M. Standley:

It’s not an endorsement proposition.

Felix Frankfurter:

I don’t care what it is.

(Voice Overlap) —

Fred M. Standley:

It’s a letter of recommendation, yes sir.

It’s not an endorsement and send somebody to get that.

Felix Frankfurter:

I don’t know.

I didn’t mean that in the state — I don’t know how he (Inaudible)

Fred M. Standley:

I’m a member of the Utah Bar and it’s three there but the investigation goes on.

I have one last thing to say, this Court has in the questions, indicated in insistence on equating the good moral character qualification to violations of law and I don’t think that’s necessarily true.

For instance, if a man was arrested for rape, I’d say, and marries the girl, he can’t be prosecuted.

Yes, but the case has to be no-crossed.

But that still indicates something or would indicate something as to his moral character.

The same way with adultery, we — New Mexico has no statute on adultery.

There are great many people who thinks — think that an adulterer is a man of bad moral character.

I — I don’t think that there is necessarily a connection between the conviction, so far as moral character is concerned.

Fred M. Standley:

I realized that on impeachment and criminal cases and so forth, that’s required.

But I don’t think that it necessarily follows that you have to be convicted of a crime to have bad moral character.

Earl Warren:

Mr. Levy, you may.

You have a minute or two.

You might finish now and you won’t have to come back this afternoon.

Herbert Monte Levy:

Thank you, Your Honor.

I’ll be very brief.

I — I have to be.

First, to clarify the answers to — the answers to some of Your Honor’s questions about what was in this confidential report.

On page 11 of the record, you find one of the Board members saying, “I don’t think our action was motivated in any way by any accusations or anything was made against him or were disclosed in some way by a report.”

Mr. Dunlevy, Schware’s attorney, “Can I assume then that there is nothing adverse in that report?”

Board member, “No.”

Another board member, “Nothing more adverse than what he,” meaning Schware, “said.”

So they have read this.

Well, it couldn’t have been very serious because the only — this member of the Court who had read it is Judge Kiker, and Judge Kiker was the only dissenting member of the Court, so it couldn’t have been very damaging.

Herbert Monte Levy:

Well, I don’t know, but I do know that they checked into the arrest and that it was just sent here by the Attorney General and that they found nothing — and in here, it is said that there was nothing more adverse in that report in what was set forth in the record here.

And this is one of the basis upon which they decided.

There may of course also have been a lot in that confidential report which was favorable to Schware.

And in terms of burden of proof, I noticed that what the Attorney General stated was that you need one letter of recommendation, apparently, as long as there isn’t anything black against the man in order to get admitted.

Now, here, what you have is endorsements by virtually everybody and the man is not admitted based purely upon what are really political judgments.

Now, I think the Chief Justice inquired whether the arrest in Texas for the stolen car, which was conceitedly completely innocent, whether that arrest had been considered.

My only answer to that would be that the Court distinctly says that they rely upon the record of arrest, which includes that particular innocent arrest.

They apparently rely upon the mere fact of arrest without any question even of the circumstances or actually of the innocence of the man.

Felix Frankfurter:

The making of arrest wouldn’t give you the circumstances, so they told you what they relied on.

Herbert Monte Levy:

Well, there were some circumstances in the record of the case, Your Honor.

Felix Frankfurter:

Well, then, it wasn’t confidential.