Anastaplo, In re

• Decision Date: 23 September 1954
• Docket Number: No. 33149,33149
• Citation: 3 Ill.2d 471,121 N.E.2d 826
• Parties: In re George ANASTAPLO, Petitioner.
• Court: Illinois Supreme Court

Page 826

121 N.E.2d 826

3 Ill.2d 471

In re George ANASTAPLO, Petitioner.

No. 33149.

Supreme Court of Illinois.

Sept. 23, 1954

George Anastaplo, Chicago, petitioner, pro se.

Leon M. Despres, Abner J. Mikva, Alexander L. Polikoff and Bernard Weisberg, Chicago, for American Civil Liberties Union, amicus curiae.

Pearl M. Hart, Chicago, Jessica Davidson and Robert J. Silverstein, New York City, for National Lawyers Guild, amicus curiae.

Stephen Love, Chicago, amicus curiae.

DAILY, Justice.

George Anastaplo, to whom we shall refer as petitioner, having successfully passed the Illinois bar examination, filed with the Committee on Character and Fitness for the First Appellate Court District, an application for admission to practice before the courts of this State, together with affidavits as to his good moral character and general fitness to practice law, as required by section IX of Rule 58 of this court. (Ill.Rev.Stat.1951, chap. 110, par. 259.58.) Subsequently, and as further ordained by the rule, he appeared both before a two-man section of the committee and before the entire committee for the purpose of furnishing evidence of his moral character and good citzenship. Ultimately, on June 5, 1951, petitioner was advised that he had failed to prove such qualifications as to character and general fitness as, in the opinion of the committee, would justify his admission to the bar of Illinois. Petitioner did not seek a rehearing, as was his right and while the committee has continued to refuse to issue him a certificate of character, it has held itself open to further suggestions and arguments of petitioner, presented through the media of letters and one further appearance of petitioner before the committee.

Petitioner has now filed in this court what it termed a 'Petition and appeal from the refusal of the Committee on Character and Fitness * * * to sign a favorable certificate for admission to the practice of law for the Applicant and Motion to the Supreme Court of Illinois to provide for the admission of the Applicant to the practice of law in the state of Illinois.' Although we have held that the discretion exercised by the committee on character and fitness will not ordinarily be reviewed, in re Frank, 293 Ill. 263, 127 N.E. 640, and it is well established that a petition for admission to the bar, though a judicial function, is an administrative act rather than a judicial proceeding, In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795, it is our opinion, in the light of petitioner's claims that the committee abused its discretion and that certain of his constitutional rights were infringed upon, there exist circumstances which should cause us to set the matter down for argument and opinion. In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795; Brooks v. Laws, 92 U.S.App.D.C. 367, 208 F.2d 18. Accordingly, petitioner has filed a brief and argument, we have granted leave to the American Civil Liberties Union and to the National Lawyers Guild, as amici curiae, to file briefs in petitioner's behalf and have permitted Stephen Love, a Chicago attorney and one-time committee member who apparently did not concur in its action, to file his suggestions in the cause.

Looking to the record, to the committee report to this court, and to petitioner's brief, we find that the crux of the controversy is centered upon petitioner's refusal to answer as to whether he was a member of the Communist Party or of any of the subversive organizations on the list compiled by the United States Department of Justice. When first asked if he was a member of the Communist Party petitioner responded that the question was an inquiry into his political beliefs and an 'illegitimate question.' Similar responses to similar questions appear in other portions of the record of petitioner's examination and at no time did he answer the question. Predicated upon these refusals, the committee, on the basis of their opinion that a member of the Communist Party, because of such membership, could not in good faith take the oath of lawyer to support the constitution of the United States and the constitution of the State of Illinois, then directed questions to petitioner designed to dlicit his views in what the committee felt were pertinent areas of inquiry. Briefly summarized, as the result of the committee's questioning, petitioner expressed his opinion that a member of the Communist Party, otherwise qualified, should be admitted to the practice of law and that the could see nothing contradictory or incompatible between adherence to the tenets of that party and the taking of the oath to support the constitutions. Likewise, at this time, he expressed his belief in the doctrine of revolution and the overthrow of government by force of arms, saying that the would embrace such doctrine if he could not agree with the existing government, or found it unsatisfactory, and felt that force of arms was the only means to attain the end desired. He stated that such view would not be altered even though the existing government provided for peaceful and orderly means of change. In its report, the committee states that the views and opinions expressed by petitioner on these matters were not the basis for the denial of a certificate, but that the committee agreed such views increased the importance of petitioner's refusals to answer and made more necessary a complete answer on the subject of membership in the Communist Party, so that the committee could better determine the ability of petitioner to take the oath of attorney in good conscience and his good citizenship.

Petitioner presently contends that the committee abused its discretion and exceeded its function by inquiring into his political views, directly and indirectly, and charges that its action in denying him a certificate stems from hostility and differences of personal opinion rather than from considerations of his lack of moral character or general fitness to practice law. At the outset of our consideration of this point, we wish to say that we find nothing in the record to substantiate petitioner's conclusion that the committee was hostile to him or that its decision was motivated by personal opinions differing from his own. What does appear clearly is that the denial was based upon the doubts as to his ability to take the oath of lawyer in good conscience created by his refusal to answer whether he was a member of the Communist Party or other member of the Communist Party or other known subversive 'front' organizations for that party. Thus our first consideration must be directed to whether petitioner's membership or nonmembership in the party was a relevant field of inquiry or whether the committee abused its discretion and exceeded its function.

In this jurisdiction it is firmly established that the power to regulate and define the practice of law is a prerogative of the judicial department, as one of the three divisions of the government created by article III of our Constitution, S.H.A., an inherent adjunct of which is to prescribe regulations for the study of law and the admission of applicants for the practice of the profession. In re Day, 181 Ill. 73, 54 N.E. 646, 50 L.R.A. 519; People ex rel. Illinois Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901; People ex rel. Chicago Bar Ass'n v. Goodman, 366 Ill. 346, 8 N.E.2d 941, 111 A.L.R. 1. A concomitant principle, established by the decisions of this court, it that the right to practice law is a privilege, and a license for that purpose makes the holder an officer of the court, and confers upon him the right to appear for litigants, to argue cases and collect fees therefor, and creates certain exemptions, such as from jury service and arrest on civil process while attending court. In re Day, 181 Ill. 73, 80, 54 N.E. 646, 50 L.R.A. 519. In the exercise of its judicial power over the bar, and in discharge of its responsibility for the choice of personnel who will compose that bar, this court has adopted Rule 58, (Ill.Rev.Stat.1951, chap. 110, par. 259.58,) which governs admissions and provides, among other things, that applicants shall be admitted to the practice of law by this court after satisfactory examination by the Board of Examiners and certification of approval by a Committee on Character and Fitness. Section IX of the rule provides for the creation of such committees and imposes upon them the duty to examine applicants who appear before them for moral character, general fitness to practice law and good citizenship. Still another condition precedent to admission to practice law in this State, imposed by the legislature, is the taking of an oath to support the constitution of the United States and the constitution of the State of Illinois. (Ill.Rev.Stat.1951, chap. 13, par. 4.) We think the conclusion inescapable that the inquiry of the committee must be directed, in part, to the ability of an applicant to take the required oath in good conscience. Such an oath requires loyalty to our government, as does any concept of good citizenship, thus inquiry aimed at determining the loyalty of an applicant, must be deemed to be relevant to a determination of the conditions for admittance fixed both by the statute and by the rule of this court.

In the case of Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, wherein the provisions of the Smith Act directed at conspiracy to teach or advocate the overthrow of the government by violence were held to be valid, we find an authoritative characterization of the Communist conspiracy and the purposes of the Communist Party in these terms: 'Their conspiracy to organize the Communist Party of the Government of the United States by of the government of the United States by force and violence created a 'clear and present danger' of an attempt to overthrow the Government by force and violence.' 341 U.S. 494, at pages 516-517, 71 S.Ct. 857, at page 871, ...