In re George Anastaplo, Petitioner

• Decision Date: 24 April 1961
• Docket Number: No. 58,58
• Citation: 81 S.Ct. 978,6 L.Ed.2d 135,366 U.S. 82
• Parties: In re George ANASTAPLO, Petitioner
• Court: U.S. Supreme Court

366 U.S. 82

81 S.Ct. 978

6 L.Ed.2d 135

In re George ANASTAPLO, Petitioner.

No. 58.

Argued Dec. 14, 1960.

Decided April 24, 1961.

Mr. George Anastaplo, petitioner, pro se.

Mr. William C. Wines, Chicago, Ill., for respondent.

Mr. Justice HARLAN delivered the opinion of the Court.

The questions presented by this case are similar to those involved in No. 28, Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105.

In 1954 petitioner, George Anastaplo, an instructor and research assistant at the University of Chicago, having previously passed his Illinois bar examinations, was denied admission to the bar of that State by the Illinois Supreme Court.¹ The denial was based upon his refusal to answer questions of the Committee on Character and Fitness as to whether he was a member of the Communist Party.² This Court, two Justices dissenting, refused review. 348 U.S. 946, 75 S.Ct. 439, 99 L.Ed. 740. In 1957, following this Court's decisions in the earlier Konigsberg case, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, and in Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, Anastaplo sought to have the Character Committee rehear his application for certification. The Committee, by a divided vote, refused, but the State Supreme Court reversed and directed rehearing.³ The ensuing lengthy proceedings before the Committee,⁴ at which Anastaplo was the only witness, are perhaps best described as a wide-ranging exchange between the Committee and Anastaplo in which the Committee sought to explore Anastaplo's ability conscientiously to swear support of the Federal and State Constitutions, as required by the Illinois attorneys' oath, and Anastaplo undertook to expound and defend, on historical and ideological premises, his abstract belief in the 'right of revolution,' and to resist, on grounds of asserted constitutional right and scruple, Committee questions which he deemed improper.⁵ The Committee already had before it uncontroverted evidence as to Anastaplo's 'good moral character,' in the form of written statements or affidavits furnished by persons of standing acquainted with him, and the record on rehearing contains nothing which could properly be considered as reflecting adversely upon his character or reputation or on the sincerity of the beliefs he espoused before the Committee.⁶ Anastaplo persisted, however, in refusing to answer, among other inquiries,⁷ the Committee's questions as to his possible membership in the Communist Party or in other allegedly related organizations.

Thereafter the Committee, by a vote of 11 to 6, again declined to certify Anastaplo because of his refusal to answer such questions, the majority stating in its report to the Illinois Supreme Court:

'his (Anastaplo's) failure to reply, in our view, (1) obstructs the lawful processes of the Committee, (ii) prevents inquiry into subjects which bear intimately upon the issue of character and fitness, such as loyalty to our basic institutions, belief in representative government and bona fides of the attorney's oath and (iii) results in his failure to meet the burden of establishing that he possesses the good moral character and fitness to practice law, which are conditions to the granting of a license to practice law.

'We draw no inference of disloyalty or subversion from applicant's continued refusal to answer questions concerning Communist or other subversive affiliations. We do, however, hold that there is a strong public interest in our being free to question applicants for admission to the bar on their adherence to our basic institutions and form of government and that such public interest in the character of its attorneys overrides an applicant's private interest in keeping such views to himself. By failing to respond to this higher public interest we hold that the applicant has obstructed the proper functions of the Committee. * * * We cannot certify the applicant as worthy of the trust and confidence of the public when we do not know that he is so worthy and when he has prevented us from finding out.'

At the same time the full Committee acknowledged that Anastaplo

'is well regarded by his academic associates, by professors who had taught him in school and by members of the Bar who know him personally * * *';

that it had

'not been supplied with any information by any third party which is derogatory to Anastaplo's character or general reputation * * *';

and that it had

'received no information from any outside source which would cast any doubt on applicant's loyalty or which would tend to connect him in any manner with any subversive group.'

Further, the majority found that Anastaplo's views

'with respect to the right to overthrow the government by force or violence, while strongly libertarian and expressed with an intensity and fervor not necessarily shared by all good citizens, are not inconsistent with those held by many patriotic Americans both at the present time and throughout the course of this country's history and do not in and of themselves reveal any adherence to subversive doctrines.'

Upon review, the Illinois Supreme Court, over three dissents,⁸ confirmed the Committee's report and refusal to certify Anastaplo, reaffirming in its per curiam opinion the court's

'* * * earlier conclusion that a determination as to whether an applicant can in good conscience take the attorney's oath to support and defend the constitutions of the United States and the State of Illinois is impossible where he refuses to state whether he is a member of a group dedicated to the overthrow of the government of the United States by force and violence.' 18 Ill.2d 182, 200—201, 163 N.E.2d 429, 439.

We granted certiorari, 362 U.S. 968, 80 S.Ct. 955, 4 L.Ed.2d 900, and set the matter for argument along with the Konigsberg case, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105, and Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156.

Two of the basic issues in this litigation have been settled by our contemporary Konigsberg opinion. We have there held it not constitutionally impermissible for a State legislatively, or through court-made regulation as here and in Konigsberg, to adopt a rule that an applicant will not be admitted to the practice of law if, and so long as, by refusing to answer material questions, he obstructs a bar examining committee in its proper functions of interrogating and cross-examining him upon his qualifications. That such was a proper function of the Illinois Character Committee is incontestably established by the opinions of the State Supreme Court in this case. 3 Ill 2d at page 476, 121 N.E.2d at page 829; 18 Ill.2d at page 188, 163 N.E.2d at page 432.⁹

We have also held in Konigsberg that the State's interest in enforcing such a rule as applied to refusals to answer questions about membership in the Communist Party outweighs any deterrent effect upon freedom of speech and association, and hence that such state action does not offend the Fourteenth Amendment.¹⁰ We think that in this respect no valid constitutional distinction can be based on the circumstance that in Konigsberg there was some, though weak, independent evidence that the applicant had once been connected with the Communist Party, while here there was no such evidence as to Anastaplo. Where, as with membership in the bar, the State may withhold a privilege available only to those possessing the requisite qualifications, it is of no constitutional significance whether the State's interrogation of an applicant on matters relevant to these qualifications—in this case Communist Party membership—is prompted by information which it already has about him from other sources, or arises merely from a good faith belief in the need for exploratory or testing questioning of the applicant. Were it otherwise, a bar examining committee such as this, having no resources of its own for independent investigation, might be placed in the untenable position of having to certify an applicant without assurance as to a significant aspect of his qualifications which the applicant himself is best circumstanced to supply. The Constitution does not so unreasonably fetter the States.¹¹

Two issues, however, do arise upon this record which are not disposed of by Konigsberg. The first is whether Anastaplo was given adequate warning as to the consequences of his refusal to answer the Committee's questions relating to Communist Party membership. The second is whether his exclusion from the bar on this ground was, in the circumstances of this case, arbitrary or discriminatory.

I.

The opinions below reflect full awareness on the part of the Character Committee and the Illinois Supreme Court of Anastaplo's constitutional right to be warned in advance of the consequences of his refusal to answer.¹² Cf. Konigsberg v. State Bar, 353 U.S. at page 261, 77 S.Ct. at page 727. On the part of Anastaplo, he stands in the unusual position of one who had already been clearly so warned as a result of his earlier exclusion from the bar for refusal to answer the very question which was again put to him on rehearing. See note 2, supra. Anastaplo nevertheless, contends in effect that he was lulled into a false sense of security by various occurrences at the Committee hearings: (1) several statements by Committee members indicating that all questions asked and refused an answer should not be considered as bearing the same level of importance in the eyes of the Committee;¹³ and (2) a statement by one of the principal Committee members that Illinois had no 'per se' rule of exclusion, that is that Anastaplo's refusal to answer would not automatically operate to exclude him from the bar.¹⁴ These suggestions, whether taken separately or together, can only be viewed as insubstantial. The sum and substance of the matter is that throughout the renewed proceedings petitioner was fully aware that his application for admission had already once...