Konigsberg v. State Bar of Cal.

• Decision Date: 16 October 1959
• Citation: 344 P.2d 777,52 Cal.2d 769
• Parties: Raphael KONIGSBERG, Petitioner, v. STATE BAR OF CALIFORNIA et al., Respondents. L. A. 23266.
• Court: California Supreme Court

Page 777

344 P.2d 777

52 Cal.2d 769

Raphael KONIGSBERG, Petitioner, v. STATE BAR OF CALIFORNIA et al., Respondents.

L. A. 23266.

Supreme Court of California, In Bank.

Oct. 16, 1959.

Rehearing Denied Nov. 10, 1959.

Edward Mosk, Hollywood, for petitioner.

A. L. Wirin, Fred Okrand, Los Angeles, and Hugh R. Manes, Hollywood, amici curiae on behalf of petitioner.

Frank B. Belcher, Robert D. Burch and Ralph E. Lewis, Los Angeles, for respondents.

PER CURIAM.

Petitioner seeks review of the action of the Committee of Bar Examiners in refusing to certify him to this court for admission to practice law in California. Also he has applied directly to this court for admission to practice.

The Committee of Bar Examiners is established by the Board of Governors of the State Bar of California pursuant to statutory authority. It conducts the bar examinations and certifies directly to this court those applicants for admission who fulfill the requirements of the code (Bus. & Prof.Code, § 6046). This court may admit to the practice any applicant so certified (Bus. & Prof.Code, § 6064). An applicant who is refused certification may have the action of the committee reviewed by this court (Bus. & Prof. Code, § 6066).

The code specifically provides (§ 6064.1) that '(n)o person who advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means, shall be certified * * * for admission * * *.'

In October, 1953, petitioner took and passed the written bar examination. Shortly before that examination, and on several later occasions, hearings were conducted by a subcommittee and the full Committee of Bar Examiners.

An ex-Communist testified that petitioner had attended meetings of a Communist Party unit in 1941. Petitioner offered much evidence of his satisfactory service in the Army during World War II, and of his good character and loyalty. The evidence of these hearings is reviewed in some detail in the several opinions in Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810. Petitioner denied that he advocated overthrow of the government, but refused to answer any questions of committee members as to his membership in the Communist Party, asserting that such inquiries infringed rights guaranteed him by the First and Fourteenth Amendments to the Constitution of the United States.

The committee, by letter of May 17, 1954, advised petitioner that his application was denied on grounds that he had not sustained his burden of establishing that he (1) possessed the good moral character required by section 6060, subdivision (c), of the Code, or (2) did not advocate unlawful overthrow of the government, the showing required by section 6064.1.

Petitioner thereupon sought review by this court. His petition was denied April 20, 1955, without opinion, by a divided court. The United States Supreme Court granted certiorari. On May 6, 1957, that court, with three justices dissenting and one not participating, reversed and remanded the matter to this court 'for further proceedings not inconsistent with this opinion' (Konigsberg v. State Bar of California, supra, 353 U.S. 252, 77 S.Ct. 722, 734, 1 L.Ed.2d 810).

In doing so, the United States Supreme Court held (353 U.S. at page 273, 77 S.Ct. at page 733) that 'there is no evidence in the record which rationally justifies a finding that Konigsberg failed to establish his good moral character or failed to show that he did not advocate forceful overthrow of the Government.'

That court specifically pointed out (353 U.S. at page 259, 77 S.Ct. at page 726) that Konigsberg 'was not denied admission to the California Bar simply because he refused to answer questions,' and noted that he had not been told that he would be barred 'just because he refused to answer relevant inquiries or because he was obstructing the Committee.' In this connection it was said (353 U.S. at page 261, 77 S.Ct. at page 727) that 'Serious questions of elemental fairness would be raised if the Committee had excluded Konigsberg simply because he failed to answer questions without first explicitly warning him that he could be barred for this reason alone. * * *'

The court stated (353 U.S. at pages 261-262, 77 S.Ct. at page 727) that 'If it were possible for us to say that the (committee) had barred Konigsberg solely because of his refusal to respond to its inquiries into his political associations and his opinions about matters of public interest, then we would be compelled to decide far-reaching and complex questions relating to freedom of speech, press and assembly. There is no justification for our straining to reach these difficult problems when the (committee) itself has not seen fit, at any time, to base its exclusion of Konigsberg on his failure to answer. If and when a State makes failure to answer a question an independent ground for exclusion from the Bar, then this Court, as the cases arise, will have to determine whether the exclusion is constitutionally permissible. We do not mean to intimate any view on that problem here nor do we mean to approve or disapprove Konigsberg's refusal to answer the particular questions asked him.'

Following the remand, this court vacated its prior order denying the petition for review and referred the entire matter, including the application for admission to the bar filed with us by petitioner after the decision of the United States Supreme Court, to the Committee of Bar Examiners for further proceedings. The committee conducted a hearing September 21, 1957.

At this hearing, the records of all previous hearings were incorporated by stipulation as part of the record, petitioner and a witness called by him were examined, and petitioner introduced letters recommending him as to character and loyalty. No evidence additional to that received in the 1953-54 hearings was offered as reflecting on petitioner's loyalty or to show his advocacy of overthrow of the government. Thus a finding that he was not of good moral character or that he advocated overthrow of the government would be inconsistent with the decision of the United States Supreme Court upon the previous record.

At the 1957 hearing, however, the committee did fully advise petitioner and his counsel that his refusal to answer material questions put to him by it would obstruct its investigation of his qualifications to practice law, with the result that the committee would not be able to certify him for admission. It was made clear to him that questions concerning membership in the Communist Party were deemed material. Nonetheless, petitioner refused to answer any and all questions put to him by the committee concerning either past or present membership in or affiliation with the Communist Party. The committee then found that Konigsberg had refused to answer its questions as to his membership in or affiliation with the Communist Party, that these questions were material to a proper determination of his qualifications, that his refusal to answer had obstructed the investigation which the statute requires, and that because of this refusal the committee is unable to certify him for admission.

It is this action which petitioner seeks to have reviewed. It differs materially from that of 1954. The committee action now before us contains no findings or conclusion that petitioner had failed to establish either his good moral character or his abstention from advocacy of overthrow of the government.

Here it is the refusal to answer material questions which is the basis for denial of certification. Petitioner's refusal to answer is conceded. The issue is whether the questions are material. We think their materiality is clear. The committee is enjoined against certifying for admission to practice any person who 'advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means.' Bus. & Prof. Code, § 6064.1. This provision clearly requires the committee to inquire as to such advocacy. The Congress (68 Stat. 775; 50 U.S.C.A. § 841) and the California Legislature (Gov.Code, § 1027.5) have declared that the Communist Party does advocate such overthrow. It follows that inquirly as to membership in that party is relevant and material in determining whether the proscribed advocacy exists. Petitioner refused to answer questions as to such membership at periods after the statutory proscription and after the legislative declarations of the purpose of the Communist Party. As we have noted, he persisted in his refusal after being warned that such conduct would be deemed to require denial of his certification by the committee.

We are unable to distinguish this situation from that presented in Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414. There a school teacher refused to answer questions as to his loyalty. This refusal was made the basis for a finding of 'incompetency.' There, as here, there was no finding that the individual was in fact disloyal, but merely a finding that his refusal to answer questions pertinent to his loyalty revealed a lack of candor which constituted unfitness. Our case is somewhat stronger in that here a statute specifically requires the committee to certify that petitioner does not advocate overthrow of the government, and the question as to party membership bears upon that issue. In Beilan, as here, there was no rule specifically providing that the failure to answer would be deemed ground for adverse action, but here, as there, the investigating authority gave clear warning that such a result would follow.

In its previous decision in this case, the United States Supreme Court held only that the evidence was insufficient to sustain a finding that petitioner is not of good moral character. The present record contains no additional evidence on that subject. However, the refusal to certify for admission is, on the...