373 U.S. 96 (1963), 140, Willner v. Committee on Character and Fitness, Appellate Division

Docket Nº:No. 140
Citation:373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224
Party Name:Willner v. Committee on Character and Fitness, Appellate Division
Case Date:May 13, 1963
Court:United States Supreme Court

Page 96

373 U.S. 96 (1963)

83 S.Ct. 1175, 10 L.Ed.2d 224

Willner

v.

Committee on Character and Fitness, Appellate Division

No. 140

United States Supreme Court

May 13, 1963

of the Supreme Court of New York, First Judicial Department

Argued February 21, 1963

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK

Syllabus

After passing the New York bar examinations in 1936, petitioner was denied admission to the Bar because of an adverse report by a Committee of lawyers appointed by the Appellate Division to investigate and report on the character and fitness of applicants. In the latest of several efforts to gain admission, he petitioned the Appellate Division for leave to file a de novo application, and he alleged, inter alia, that, in connection with hearings before the Committee on his 1937 application, he was shown a letter from a New York attorney containing various adverse statements about him; that a member of the Committee promised him a personal confrontation with that attorney, but that promise was never kept; and that another lawyer intended "to destroy" him, and was acting in collusion with the Secretary and two members of the Committee. The Appellate Division denied the petition without opinion. In the State Court of Appeals, petitioner alleged that he had never been afforded an opportunity to confront his accusers or to cross-examine them, and that he could not be sure of the Committee's reasons for refusing to certify him for admission. After granting leave to appeal, obtaining the file from the Appellate Division, receiving briefs, and hearing arguments, the Court of Appeals affirmed the order of the Appellate Division without opinion, but it amended its remittitur to recite that it had necessarily passed upon a question under the Federal Constitution, and held that petitioner was not denied due process of law in violation of the Fifth and Fourteenth Amendments.

Held: Petitioner was denied procedural due process when he was denied admission to the bar by the Appellate Division without a hearing before either the Committee or the Appellate Division on the charges filed against him. Pp. 97-106.

(a) The issue presented is justiciable, since the claim of present right to admission to the Bar of a State and the denial of that right is a controversy. P. 102.

Page 97

(b) The requirements of procedural due process must be met before a State can exclude a person from practicing law. P. 102.

(c) Procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood. Pp. 103-104.

(d) Where, as here, the Appellate Division held no hearings of its own to determine petitioner's character, but relied entirely upon the report of the Committee, it cannot escape the requirements of due process by claiming that the Committee's action was merely advisory. P. 104.

(e) In view of the certification by the Court of Appeals that it "necessarily" ruled on the constitutional issue "presented," it cannot be said that petitioner sought relief too late. P. 104.

(f) Petitioner was clearly entitled to notice of, and a hearing on, the grounds for his rejection, either before the Committee or before the Appellate Division. Pp. 104-105.

11 N.Y.2d 866, 182 N.E.2d 288, reversed.

DOUGLAS, J., lead opinion

Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. JUSTICE BLACK.

Petitioner passed the New York bar examinations in 1936, but has not yet been admitted to practice. The present case is the latest in a long series of proceedings whereby he seeks admission.

Under New York law, the Appellate Division of the State Supreme Court of each of the four Judicial Departments

Page 98

has power to admit applicants to the Bar. Once the State Board of Bar Examiners certifies that an applicant has passed the examination (or that an examination has been dispensed with), the Appellate Division shall admit him to practice "if it shall be satisfied that such person possesses the character and general fitness requisite for an attorney and counsellor-at-law." Judiciary Law, § 90(1)(a).

The Appellate Division is required by Rule 1 of the New York Rules of Civil Practice to appoint a committee of not less than three practicing lawyers "for the purpose of investigating the character and fitness" of applicants. "Unless otherwise ordered by the appellate division, no person shall be admitted to practice" without a favorable certificate from the Committee. Ibid. Provision is made for submission by the applicant to the Committee of "all the information and data required by the committee and the Appellate Division justices." Ibid. If an applicant has once applied for admission and failed to obtain a certificate of good character and fitness, he must obtain and submit "the written consent" of the Appellate Division to a renewal of his application. Ibid.

The papers of an applicant for admission to the Bar are required by Rule 1(g) of the Rules of Civil Practice to be kept on file in the Office of the Clerk of the Appellate Division.

The Court of Appeals, pursuant to its rulemaking authority, (Judiciary Law, § 53(1)) has promulgated Rules for the Admission of Attorneys and Counsellors-at-Law which [83 S.Ct. 1178] provide, inter alia, that every applicant must produce before the Committee "evidence that he possesses the good moral character and general fitness requisite for an attorney and counsellor-at-law" (Rule VIII-1), and that justices of the Appellate Division shall adopt "such additional rules for ascertaining the moral and general

Page 99

fitness of applicants as to such justices may seem proper." Rule VIII-4.

The Appellate Division to which petitioner has made application has not promulgated any "additional rules" under Rule VIII-4. Its Character and Fitness Committee consists of 10 members; and that Committee, we are advised, has not published or provided any rules of procedure.

The statute provides that "all papers, records and documents" of applicants "shall be sealed and be deemed private and confidential," except that,

upon good cause being shown, the justices of the appellate division . . . are empowered, in their discretion, by written order, to permit to be divulged all or any part of such papers, records and documents.

Judiciary Law, § 90(10). And, for that purpose they may make such rules "as they may deem necessary." Ibid.

But New York does not appear to have any procedure whereby an applicant for admission to the Bar is served with an order to show cause by the Appellate Division before he is denied admission, nor any other procedure that gives him a hearing prior to the court's adverse action.1

Page 100

The present case started with a petition by Willner to the Appellate Division seeking leave to file a de novo application which alleged the following:

Willner had been certified by the State Board of Bar Examiners as having passed the bar examinations in 1936, and the Committee, in 1938, after several hearings, filed with the Appellate Division its determination that it was not satisfied, and could not "certify that the applicant possesses the character and general fitness requisite for an attorney and counsellor-at-law." In 1943, Willner applied to the Appellate Division for an order directing the Committee to review its 1938 determination. This motion was denied without opinion. Willner, in 1948, again petitioned the Appellate Division [83 S.Ct. 1179] for a reexamination of his application, and for permission to file a new application. The Appellate Division permitted him to file a new application. Upon the filing of that application, the Committee conducted two hearings in 1948, and, by a report in 1950, refused to certify him for the second time. In 1951, Willner again made application to the Appellate Division for an order directing, inter alia, the Committee

Page 101

to furnish him with statements of its reasons for its refusal to certify him or that a referee be appointed to hear and report on the question of his character and fitness. This application was denied without opinion. In 1954, Willner filed a fourth application with the Appellate Division requesting leave to file an application for admission. This was denied without opinion. The Court of Appeals refused leave to appeal, and this Court denied certiorari. 348 U.S. 955. In 1960, Willner filed a fifth application with the Appellate Division, which application was denied without opinion.

The present petition further alleged that Willner has been a member in good standing of the New York Society of Certified Public Accountants and of the American Institute of Accountants since 1951, and that he has been admitted to practice before the Tax Court and the Treasury Department since 1928. Petitioner alleged that, in connection with his hearings before the Committee on his 1937 application, he was shown a letter containing various adverse statements about him from a New York attorney; that a member of the Committee promised him a personal confrontation with that attorney; but that the promise was never kept. Petitioner also alleged that he had been involved in litigation with another lawyer who had as his purpose "to destroy me"; that the secretary of the Committee was taking orders from that lawyer, and that two members of the Committee were "in cahoots" with that lawyer.

The Appellate Division denied the petition without opinion and denied leave to appeal to the Court of Appeals. Willner thereupon sought leave to appeal to the Court of Appeals, and, in an affidavit in support of his motion, stated,

I was never afforded the opportunity of confronting my accusers, of having the accusers sworn and cross-examining them, and the opportunity of refuting the accusations and accusers.

Page 102

The Court of Appeals granted leave to appeal, and the Clerk of that Court obtained from the Clerk of the Appellate Division the file in the case....

To continue reading

FREE SIGN UP