In re Carter

• Decision Date: 18 January 1951
• Docket Number: No. 10504.,10504.
• Citation: 89 US App. DC 310,192 F.2d 15
• Parties: In re CARTER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

89 US App. DC 310, 192 F.2d 15 (1951)

In re CARTER.

No. 10504.

United States Court of Appeals District of Columbia Circuit.

Argued October 9, 1950.

Decided January 18, 1951.

On Rehearing July 20, 1951.

James A. Cobb and George E. C. Hayes, Washington, D. C., with whom Howard Jenkins, Jr., Washington, D. C., was on the brief, for appellant.

Oscar H. Davis, Special Asst. to the Atty. Gen., for the Solicitor General of the United States as amicus curiæ.

Philip B. Perlman, Sol. Gen. of United States, Washington, D. C., as amicus curiæ, urged affirmance.

Before EDGERTON, CLARK, and PRETTYMAN, Circuit Judges.

On Rehearing in Banc July 20, 1951.

EDGERTON, Circuit Judge.

An Act of Congress declares that "The business of becoming surety for compensation upon bonds in criminal cases in the District of Columbia is impressed with a public interest." D.C.Code (1940) § 23-602. It requires the District Court and other trial courts "to provide, under reasonable rules and regulations, the qualifications of persons and corporations applying for authority to engage" in this business, and provides that no one shall engage in it "in any such court until he shall by order of the court be authorized to do so. Such courts, in making such rules and regulations, and in granting authority to persons to engage in the bonding business, shall take into consideration both the financial responsibility and the moral qualities of the person so applying, and no person shall be permitted to engage, either as principal or agent, in the business of becoming surety upon bonds for compensation in criminal cases, who has ever been convicted of any offense involving moral turpitude, or who is not known to be a person of good moral character. * * *" D.C.Code (1940) § 23-608.

In 1947 the District Court licensed appellant Carter to engage in the bonding business for two years. It revoked his license in 1948, after learning that in applying for it he had sworn that he had "never been charged and/or convicted of any offense involving moral turpitude" whereas actually, many years before, he had been charged once with receiving stolen property and three times with violations of the gambling laws. He had never been convicted, or even brought to trial, and under the court's rules about license applications the fact that he had been charged was immaterial. Applicants were required to state whether they had been convicted, but not whether they had been charged. Appellant did not misrepresent any fact about which he was asked. Moreover, he did not intentionally misrepresent any fact whatever. As the District Court found, such misrepresentation as he made "was not made willfully or with a purpose to deceive the Court, but was made on the advice of counsel who informed the petitioner that the language used would not constitute a misrepresentation." The court revoked appellant's license despite these favorable findings, and regarded his application as pending. It obtained a report from the F.B.I. which is not before us. The court did not put the report in the record or even disclose its contents to counsel but "placed it in a sealed envelope, not to be opened." Six months later the court denied appellant's application. On appeal we held the revocation invalid for lack of "a hearing and revelation of all data upon which a decision is to be based." We held that whatever might be true of the grant of the right to engage in the bonding business, "the deprivation of that right, once granted, is a judicial act, requiring due process of law."¹

When appellant's license expired he applied for its renewal. His application was verified and was supported by affidavits of good moral character. It conformed to all the rules and regulations of the District Court. The record before that court showed without dispute that the appellant has the qualifications for a bondsman. Yet the District Court denied his application "on the ground that in the opinion of the Court he lacks the qualifications for a bondsman." The present appeal is from that order.

The District Court did not disclose what qualification it believed appellant lacked. Against the background of the sealed envelope its present action seems, as its former action seemed, to imply a belief that appellant's character is not good. It did not disclose the source of its belief. It said appellant's application was "in the administrative discretion of the Court." From that premise it seems to have drawn the conclusion that it could deny the application without a hearing, without evidence, and without possibility of review to determine whether its discretion was abused. On this appeal the Solicitor General as amicus curiæ takes substantially the same position. Though some of the language in our opinion on the former appeal may seem to support this position, we think it erroneous.

In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795, involved an order of the Supreme Court of Illinois which had denied the application of Summers for admission to the practice of law. The Illinois court regarded its order as "ministerial", like the appointment of a clerk or bailiff, but the Supreme Court of the United States held it "a judgment in a judicial proceeding", 325 U.S. at page 566, 65 S.Ct. at page 1310, and subject to review on certiorari. The Supreme Court said: "A claim of a present right to admission to the bar of a state and a denial of that right is a controversy. When * * * denial of the right is made by judicial order, it is a case which may be reviewed * * *." 325 U.S. at page 568-569, 65 S. Ct. at page 1312.²

In Carver v. Clephane we affirmed an order of the District Court dismissing a complaint for admission to the bar. We pointed out that the order was entered "after a hearing".³ It was based on a finding against the applicant's character. The record supported the finding.

Despite the differences between a lawyer's profession and a bondsman's business, they are alike in all the respects that seem even remotely or possibly pertinent to the question whether a court's order denying a license is judicial. Both differ from some occupations in that they plainly require good moral character, and from most occupations in that they are carried on in connection with courts and require licenses from courts. But both lawyers and bondsmen are on quite a different footing from a court's clerk or bailiff. They are not completely under a court's control, or obligated to deal with the public impartially; within wide limits they may choose how, when, where and whom they will serve. They are not commonly paid from public funds, their callings are not necessarily limited to a single person or to a few persons, and they cannot be deprived of their functions in a court's discretion. Since a court's order denying an application to practice law is a judicial act, as the Supreme Court determined in the Summers case, so is a court's order denying an application to do business as a bondsman. Since the District Court's order is judicial it is (1) appealable⁴ and (2) erroneous because not based "upon a proceeding which contains the elements of due process of law, i. e., a hearing and relevation of all data upon which a decision is to be based."⁵ Old charges never brought to trial, and appellant's innocent mistake of fact on an immaterial matter, do not support the order. Neither do any secret charges that may have been made by anonymous informants whom the appellant has had no opportunity to confront and cross-examine.

The idea that this decision means courts must grade examination papers is erroneous. Expert opinion properly before a court on a technical question, such as the extent of an applicant's professional ability as shown by an examination, is of course a proper basis for either judicial or administrative action. A court is under no more obligation to form a judgment independently of expert opinion about an applicant's knowledge of law than about his knowledge of medicine or pharmacy. But no qualification of a bondsman appears to turn on technical questions requiring expert opinion. Certainly character does not. And the record contains no opinion unfavorable to the appellant except the District Court's own.

We do not imply that in our opinion the appealed order would be valid if it were administrative. Like the order involved in Carter's previous appeal, if it were upheld it would destroy an established business. We do not imply that in our opinion a purely administrative refusal to renew, or to grant, a license to do a lawful business could be supported if based on arbitrary grounds⁶ or made without such a "hearing and opportunity to answer * * * as would constitute due process."⁷

Reversed.

PRETTYMAN, Circuit Judge (dissenting).

On the first appeal in this case we held, I thought, that the original grant and the renewals of authority to write bail bonds for pay were functions of the District Court with which this court had no concern; except, of course, in the unlikely event of arbitrary abuse. This court held a due process hearing to be necessary to a mid-term revocation of authority, upon the premise that revocation is wholly different from an original grant or a renewal. And I did not understand that phase of the opinion to be entirely obiter; it was the premise upon which the decision was founded. The premise was assumed, to be sure, rather than asserted, but that is the way I understood it. However, whether we held it definitively then or not, that view of original grant and of renewal is correct, in my opinion.

Perhaps I had better first describe the difference between us, as I see it, and then state the reasons which appeal to me as controlling. One view is that the rejection of an application of the type here involved is the sort of action which must be based upon an evaluation of evidence openly presented, at a hearing, and subjected to the usual protective measures, such as cross examination, customarily...