Konigsberg v. State Bar of California, 28

CourtUnited States Supreme Court
Writing for the CourtHARLAN
Citation6 L.Ed.2d 105,366 U.S. 36,81 S.Ct. 997
PartiesRaphael KONIGSBERG, Petitioner, v. STATE BAR OF CALIFORNIA and the Committee of Bar Examiners of the State of California
Docket NumberNo. 28,28
Decision Date24 April 1961

366 U.S. 36
81 S.Ct. 997
6 L.Ed.2d 105
Raphael KONIGSBERG, Petitioner,


STATE BAR OF CALIFORNIA and the Committee of Bar Examiners of the State of California.

No. 28.
Argued Dec. 14, 1960.
April 24, 1961.

Page 37

Mr. Edward Mosk, Hollywood, Cal., for petitioner.

Mr. Frank B. Belcher, Los Angeles, Cal., for respondents.

Mr. Justice HARLAN delivered the opinion of the Court.

This case, involving California's second rejection of petitioner's application for admission to the state bar, is a sequel to Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, in which this Court reversed the State's initial refusal of his application.

Under California law the State Supreme Court may admit to the practice of law any applicant whose qualifications have been certified to it by the California Committee of Bar Examiners. Cal.Bus. & Prof.Code § 6064. To qualify for certification an applicant must, among other things, be of 'good moral character,' id., § 6060(c), and no person may be certified 'who advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means * * *.' Id., § 6064.1. The Committee is empowered and required to ascertain the qualifications of all candidates. Id., § 6046. Under rules prescribed by the Board of Governors of the State Bar, an applicant before

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the Committee has 'the burden of proving that he is possessed of good moral character, of removing any and all reasonable suspicion of moral unfitness, and that he is entitled to the high regard and confidence of the public.' Id., Div. 3, c. 4, Rule X, § 101. Any applicant denied certification may have the Committee's action reviewed by the State Supreme Court. Id., § 6066.

In 1953 petitioner, having successfully passed the California bar examinations, applied for certification for bar membership. The Committee, after interrogating Konigsberg and receiving considerable evidence as to his qualifications, declined to certify him on the ground that he had failed to meet the burden of proving his eligibility under the two statutory requirements relating to good moral character and nonadvocacy of violent overthrow. That determination centered largely around Konigsberg's repeated refusals to answer Committee questions as to his present or past membership in the Communist Party.1 The California Supreme Court denied review without opinion. See 52 Cal.2d 769, 770, 344 P.2d 777, 778.

On certiorari this Court, after reviewing the record, held the state determination to have been without rational support in the evidence and therefore offensive to the Due Process Clause of the Fourteenth Amendment. Konigsberg v. State Bar of California, supra. At the same time the Court declined to decide whether Konigsberg's refusals to answer could constitutionally afford 'an independent ground for exclusion from the Bar,' considering that such an issue was not before it. Id., 353 U.S. 259—262, 77 S.Ct. 726—727. The case was remanded

Page 39

to the State Supreme Court 'for further proceedings not inconsistent with this opinion.' Id., 353 U.S. 274, 77 S.Ct. 734.

On remand petitioner moved the California Supreme Court for immediate admission to the bar. The court vacated its previous order denying review and referred the matter to the Bar Committee for further consideration. At the ensuing Committee hearings Konigsberg introduced further evidence as to his good moral character (none of which was rebutted), reiterated unequivocally his disbelief in violent overthrow, and stated that he had never knowingly been a member of any organization which advocated such action. He persisted, however, in his refusals to answer any questions relating to his membership in the Communist Party. The Committee again declined to certify him, this time on the ground that his refusals to answer had obstructed a full investigation into his qualifications.2 The California Supreme Court, by a divided vote, refused review, and also denied Konigsberg's motion for direct admission to practice. 3 52 Cal.2d 769,

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344 P.2d 777. We again brought the case here. 362 U.S. 910, 80 S.Ct. 661, 4 L.Ed.2d 618.

Petitioner's contentions in this Court in support of reversal of the California Supreme Court's order are reducible to three propositions: (1) the State's action was inconsistent with this Court's decision in the earlier Konigsberg case; (2) assuming the Committee's inquiries into Konigsberg's possible Communist Party membership were permissible, it was unconstitutionally arbitrary for the State to deny him admission because of his refusals to answer; and (3) in any event, Konigsberg was constitutionally justified in refusing to answer these questions.


Consideration of petitioner's contentions as to the effect of this Court's decision in the former Konigsberg case requires that there be kept clearly in mind what is entailed in California's rule, comparable to that in many States, that an applicant for admission to the bar bears the burden of proof of 'good moral character'4—a

Page 41

requirement whose validity is not, nor could well be, drawn in question here.5

Under such a rule an applicant must initially furnish enough evidence of good character to make a prima facie case. The examining Committee then has the opportunity to rebut that showing with evidence of bad character. Such evidence may result from the Committee's own independent investigation, from an applicant's responses

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to questions on his application form, or from Committee interrogation of the applicant himself. This interrogation may well be of decisive importance for, as all familiar with bar admission proceedings know, exclusion of unworthy candidates frequently depends upon the thoroughness of the Committee's questioning, revealing as it may infirmities in an otherwise satisfactory showing on his part. This is especially so where a bar committee, as is not infrequently the case, has no means of conducting an independent investigation of its own into an applicant's qualifications. If at the conclusion of the proceedings the evidence of good character and that of bad character are found in even balance, the State may refuse admission to the applicant, just as in an ordinary suit a plaintiff may fail in his case because he has not met his burden of proof.

In the first Konigsberg case this Court was concerned solely with the question whether the balance between the favorable and unfavorable evidence as to Konigsberg's qualifications had been struck in accordance with the requirements of due process. It was there held, first, that Konigsberg had made out a prima facie case of good character and of nonadvocacy of violent overthrow, and, second, that the other evidence in the record could not, even with the aid of all reasonable inferences flowing therefrom, cast such doubts upon petitioner's prima facie case as to justify any finding other than that these two California qualification requirements had been satisfied.6 In assessing the significance of Konigsberg's refusal to answer questions as to Communist Party membership, the Court dealt only with the fact that this refusal could not provide any reasonable indication of a character not meet-

Page 43

ing these two standards for admission. The Court did not consider, but reserved for later decision, all questions as to the permissibility of the State treating Konigsberg's refusal to answer as a ground for exclusion, not because it was evidence from which substantive conclusions might be drawn, but because the refusal had thwarted a full investigation into his qualifications. See 353 U.S. at pages 259—262, 77 S.Ct. at pages 726—728. The State now asserts that ground for exclusion, an issue that is not foreclosed by anything in this Court's earlier opinion which decided a quite different question.

It is equally clear that the State's ordering of the rehearing which led to petitioner's exclusion manifested no disrespect of the effect of the mandate in that case, which expressly left the matter open for further state proceedings 'not inconsistent with' the Court's opinion. There is no basis for any suggestion that the State in so proceeding has adopted unusual or discriminatory procedures to avoid the normal consequences of this Court's earlier determination. In its earlier proceeding, the California Bar Committee may have found further investigation and questioning of petitioner unnecessary when, in its view, the applicant's prima facie case of qualifications had been sufficiently rebutted by evidence already in the record. While in its former opinion this Court held that the State could not constitutionally so conclude, it did not undertake to preclude the state agency from asking any questions or from conducting any investigation that it might have thought necessary had it known that the basis of its then decision would be overturned. In recalling Konigsberg for further testimony, the Committee did only what this Court has consistently held that federal administrative tribunals may do on remand after a reviewing court has set aside agency orders as unsupported by requisite findings of fact. Federal Communications

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Comm. v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656; Fly v. Heitmeyer, 309 U.S. 146, 60 S.Ct. 443, 84 L.Ed. 664.

In the absence of the slightest indication of any purpose on the part of the State to evade the Court's prior decision, principles of finality protecting the parties to this state litigation are, within broad limits of fundamental fairness, solely the concern of California law. Such limits are broad even in a criminal case, see Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913; cf. Palko v. State of Connecticut, 302 U.S. 319, 328, 58 S.Ct. 149, 153, 82 L.Ed. 288. In this instance they...

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