325 U.S. 561 (1945), 205, In re Summers

Docket Nº:No. 205
Citation:325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795
Party Name:In re Summers
Case Date:June 11, 1945
Court:United States Supreme Court

Page 561

325 U.S. 561 (1945)

65 S.Ct. 1307, 89 L.Ed. 1795

In re Summers

No. 205

United States Supreme Court

June 11, 1945

Argued April 27, 30, 1945



1. The Illinois Supreme Court's refusal, on the merits, of petitioner's application for admission to the practice of law, although the matter was not regarded by that court as a judicial proceeding, held to involve a case or controversy within the judicial power under Art. III, § 1, cl. 1 of the Federal Constitution. P. 566.

2. Refusal of an application for admission to the practice of law in a State on the ground that the applicant would be unable in good faith to take the required oath to support the constitution of the State, because of conscientious scruples resulting in unwillingness to serve in the state militia in time of war, held not a denial of any right of the applicant under the First and Fourteenth Amendments of the Federal Constitution. P. 571.


Certiorari, 323 U.S. 705, to review the action of the Supreme Court of Illinois in refusing petitioner's application for admission to the bar.

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REED, J., lead opinion

MR. JUSTICE REED delivered the opinion of the Court.

Petitioner sought a writ of certiorari from this Court under Section 237(b) of the Judicial Code to review the action of the Supreme Court of Illinois in denying petitioner's prayer for admission to the practice of law in that state. It was alleged that the denial was "on the sole ground that he is a conscientious objector to war," or, to phrase petitioner's contention slightly differently, "because of his conscientious scruples against participation in war." Petitioner challenges here the right of the Supreme Court to exclude him from the bar under the due process clause of the Fourteenth Amendment to the Constitution of the United States which secured to him protection against state action in violation of the principles of the First Amendment.1 Because of the importance of the tendered issue in [65 S.Ct. 1309] the domain of civil rights, we granted certiorari.2 323 U.S. 705.

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Since the proceedings were not treated as judicial by the Supreme Court of Illinois, the record is not in the customary form. It shows accurately, however, the steps by which the issue was developed and the action of the Supreme Court on the prayer for admission to the practice of law in the Illinois. From the record, it appears that Clyde Wilson Summers has complied with all prerequisites for admission to the bar of Illinois except that he has not obtained the certificate of the Committee on Character and Fitness. Cf. Illinois Revised Statutes 1943, c. 110, § 259.58. No report appears in the record from the Committee. An unofficial letter from the Secretary gives his personal views.3 A petition was filed in the

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Supreme Court on August 2, 1943, which alleged that petitioner was informed in January, 1943, that the Committee declined to sign a favorable certificate. The petition set out that the sole reason for the Committee's refusal was that petitioner was a conscientious objector to war, and averred that such reason did not justify his exclusion because of the due process clause of the Fourteenth Amendment. The denial of the petition for admission is informal. It consists of a letter of September 20, 1943, to the Secretary of the Committee which is set out below,4 a letter of the same date to Mr. Summers, and a third letter of March 22, 1944, to [65 S.Ct. 1310] Mr. Summers' attorney on petition for rehearing. These latter two letters are set out in note 8.

The answer of the Justices to these allegations does not appear in the record which was transmitted from the Supreme Court of Illinois to this Court, but in their return to the rule to show cause why certiorari should not be granted. The answer is two-fold: first, that the proceedings were not a matter of judicial cognizance in Illinois, and that no case or controversy exists in this Court

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under Article III of the Federal Constitution; second, that, assuming the sole ground for refusing to petitioner admission to practice was his profession of conscientious objection to military service, such refusal did not violate the Fourteenth Amendment because the requirement for applicants for admission to the bar to take an oath to support the Constitution of Illinois could not be met. In view of his religious affirmations, petitioner could not agree, freely, to serve in the Illinois militia. Therefore, petitioner was not barred because of his religion, but because he could not in good faith take the prescribed oath, even though he might be willing to do so. We turn to consideration of the Justices' contentions.

Case or Controversy. The return of the Chief Justice and the Associate Justices states that the correspondence and communications of petitioner with the Justices were not spread upon the records of the Supreme Court of Illinois, and that, under the law of Illinois, this petition for admission to the bar does not constitute a case or controversy or a judicial proceeding, but is a mere application for appointment as an officer of the court.5 We, of course, accept this authoritative commentary upon the law of Illinois as establishing for that state the nonjudicial character of an application for admission to the bar.6 We take it that the law of Illinois treats the action of the Supreme

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Court on this petition as a ministerial act which is performed by virtue of the judicial power, such as the appointment of a clerk or bailiff or the specification of the requirements of eligibility or the course of study for applicants for admission to the bar, rather than a judicial proceeding.

For the purpose of determining whether the action of the Supreme Court of Illinois in denying Summers' petition for an order for admission to practice law in Illinois is a judgment in a judicial proceeding which involves a case or controversy reviewable in this Court under Article III, Sec. 2, Cl. 1, of the Constitution of the United States,7 we must for ourselves appraise [65 S.Ct. 1311] the circumstances of the refusal. Nashville, C. & St.L. R. v. Wallace, 288 U.S. 249, 259. Cf. Bridges v. California, 314 U.S. 252, 259, 260; Nixon v. Condon, 286 U.S. 73, 88; First National Bank v. Hartford, 273 U.S. 548, 552; Truax v. Corrigan, 257 U.S. 312, 324.

A case arises, within the meaning of the Constitution, when any question respecting the Constitution, treaties

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or laws of the United States has assumed "such a form that the judicial power is capable of acting on it." Osborn v. Bank, 9 Wheat. 738, 819. The Court was then considering the power of the bank to sue in the federal courts. A declaration on rights as they stand must be sought, not on rights which may arise in the future, Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, and there must be an actual controversy over an issue, not a desire for an abstract declaration of the law. Muskrat v. United States, 219 U.S. 346, 361; Fairchild v. Hughes, 258 U.S. 126, 129. The form of the proceeding is not significant. It is the nature and effect which is controlling. Nashville, C. & St.L. R. v. Wallace, 288 U.S. 249, 259.

The brief for the Justices raises the question as to who are the adversary parties. The petition in the state court was entitled, "Clyde Wilson, Summers, Petitioner v. Committee on Character and Fitness for Third Appellate District, Respondent." The prayer sought relief against those named as respondents. The record does not show that any process issued or that any appearance was made. Our rule on the petition for certiorari required the Supreme Court of Illinois to show cause why a record should not be certified and the writ of certiorari granted. The return was by the Justices, not by the Court. The Supreme Court of Illinois, however, concluded that the "report of the Committee on Character and Fitness should be sustained." Thus, it considered the petition on its merits. While no entry was placed by the Clerk in the file, on a docket, or on a judgment roll, the Court took cognizance of the petition and passed an order which is validated by the signature of the presiding officer.8 Where relief is thus sought in a state court against the action of a committee,

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appointed to advise the court, and the court takes [65 S.Ct. 1312] cognizance of the complaint without requiring the appearance of the committee or its members, we think the consideration of the petition by the Supreme Court, the body which has authority itself by its own act to give the relief sought, makes the proceeding adversary in the sense of a true case or controversy.

A claim of a present right to admission to the bar of a state and a denial of that right is a controversy. When the claim is made in a state court and a denial of the right is

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made by judicial order, it is a case which may be reviewed under Article III of the Constitution when federal questions are raised and proper steps taken to that end in this Court.9

Disqualification Under Illinois Constitution. The Justices justify their refusal to admit petitioner to practice before the courts of Illinois on the ground of petitioner's inability to take in good faith the required oath to support the Constitution of Illinois. His inability to take such an oath, the justices submit, shows that the Committee on Character and Fitness properly refused to certify to his moral character and moral fitness to be an officer of the Court, charged with the administration of justice under the Illinois law. His good citizenship, they think, judged by the standards required for practicing law in Illinois, is not satisfactorily shown.10 A conscientious belief in nonviolence

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to the extent that the believer will not use force to prevent wrong, no matter how aggravated, and so cannot swear in good faith to support the...

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