Levine, Application of

• Decision Date: 11 December 1964
• Docket Number: No. 8429,8429
• Citation: 97 Ariz. 88,397 P.2d 205
• Parties: Application of Jack LEVINE for Admission to the State Bar of Arizona.
• Court: Arizona Supreme Court

Page 205

397 P.2d 205

97 Ariz. 88

Application of Jack LEVINE for Admission to the State Bar of Arizona.

No. 8429.

Supreme Court of Arizona, In Banc.

Dec. 11, 1964.

Rehearing Denied Jan. 12, 1965.

Langerman & Begam, Phoenix, for applicant.

Rouland W. Hill, Chairman, and Mark Wilmer, Member, Phoenix, for Committee on Examinations and Admissions.

STRUCKMEYER, Justice.

This is an original application by Jack Levine for admission to the State Bar of Arizona. Levine passed the written examination for admission in February of 1964; however, the Committee on Examinations and Admissions declined to recommend his admission. We directed the committee to show cause why Levine should not be admitted and, on its response admitted him to practice on July 27, 1964, with an opinion of the Court to follow.

Applicant is thirty years old, a native citizen of the United States, was graduated with a degree in law from New York University and was admitted to practice law in the State of New York on June 20, 1960. In September of 1960, he was employed by the Federal Bureau of Investigation and continued in its employ for a period of about eleven months, at which time he resigned assigning as the reason that it was to assume family business responsibilities. Three weeks later he requested reinstatement but was advised, in part, by the Bureau's Director, J. Edgar Hoover, '* * * we are unable to reemploy you at this time and it does not appear likely that we shall do so in the near future.' Applicant practiced law in New York City until he established a residence in Arizona.

The committee reported to this Court that after Levine was denied reinstatement he wrote letters to the Senate Appropriations Committee, House Committee on Appropriations and House Government Operations Committee, charging irregularities in the manner in which the Bureau was operated; that he authored an article published in the October 20, 1962, edition of 'The Nation' entitled, 'Hoover and the Red Scare,' in which article he made representations which were fictitious and disclosed information which had come to him solely in his employment with the Federal Bureau of Investigation; that applicant, from time to time, made other charges derogatory of the Bureau and its Director, Hoover, which, in general, were not true. The committee was of the opinion that the charges tended to undermine the confidence of the public in the Federal Bureau of Investigation and concluded that applicant 'does not possess the sense of public responsibility which a lawyer should have.'

On February 13, 1964, the committee advised Levine that it was investigating his application for admission to the State Bar and that it desired to inquire into his association with the Bureau and statements which he was alleged to have made concerning its organization and operation. Two hearings were held, at which the subject of inquiry was his relations with the Bureau and his activities in the writing and publication of the articles and statements made by him concerning it and its Director. Levine requested that any communications to the committee or other relevant material be made available for his examination. His request was not then or ever granted. This brings us to the fundamental problem which permeated the atmosphere surrounding this application and which led this Court to overrule the committee.

We have held the practice of law rises above that of a mere privilege. For those who have the necessary qualifications it is a right. Application of Burke, 87 Ariz. 336, 351 P.2d 169. The right to practice law is neither greater nor less than the right to engage in other occupations, businesses or trades, for the right to seek and retain employment is shared by all equally and to be equal must be upon the same conditions. It cannot be treated as a matter of grace or favor, Willner v. Committee on Character and Fitness of New York, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224.

We have held on various occasions that one may not be excluded by state action from a business, profession or occupation in a manner or for reasons which contravene the due process clause of the Fourteenth Amendment of the Constitution of the United States, and that due process means that there must be given notice of time and place of hearing, a reasonable definite statement of the charge or charges, the right to produce witnesses and to examine adverse witnesses and to have a full consideration and determination according to evidence before the body with whom the hearing is held. Bennett v. Arizona State Board of Public Welfare, 95 Ariz. 170, 388 P.2d 166; Forman v. Creighton School District No. 14, 87 Ariz. 329, 351 P.2d 165. See MeGee v. Arizona State Board of Pardons and Paroles, 92 Ariz. 317, 376 P.2d 779. Compare Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377; Lewis v. City of Grand Rapids, Michigan, D.C., 222 F.Supp. 349. We believe that there is inherent in our democratic system the right to compete freely on an equal basis for the material goods of existence and that the right is protected by the due process and equal protection clauses of the Fourteenth Amendment. See Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796.

In Arizona, as a prerequisite to the admission to practice an applicant has the burden of establishing his good moral character. If the proof of good moral character falls short of convincing the Committee on Examinations and Admissions, it is its duty not to recommend admission. Application of Courtney, 83 Ariz. 231, 319 P.2d 991. If the committee believed that there was doubt as to Levine's good moral character, its plain duty was to refuse to certify his name to this Court for admission, for the ultimate responsibility for the admittance to the practice of law lies in the members of the Court.

The Committee on Examinations and Admissions, as an investigatorial body, is not required to bring formal charges against one who seeks admission to the practice of law, for an applicant is in no sense on trial. He is simply obliged to convince the committee that he is worthy of its recommendation. It is the duty of the committee to investigate the applicant's qualifications and his fitness to practice law. At all stages in the investigation, it is the applicant's right to produce witnesses and evidence on his own behalf and, if there are accusers and adverse witnesses, to be confronted by and to examine them. It is, finally, the responsibility of the committee to consider the evidence on the open record and recommend to this Court only those applicants who, in the opinion of the committee, have satisfactorily established their qualifications. Application of Burke, supra.

If the committee fails to recommend the admission of an applicant, he may challenge the committee's conclusions by an original application to this Court, Application of Courtney, supra. This Court will direct the committee to show cause why the applicant has been refused a favorable recommendation and on the applicant's petition and the committee's response, using our independent judgment, de novo determine whether the necessary qualifications have been shown.

This brings us to the reasons the committee refused to certify Levine.

In its investigation of the applicant, there were held two hearings at which Levine was the only witness. At both hearings he was examined only on matters concerning his relations with the Federal Bureau of Investigation. The committee was in possession of what was stated to be a 'purported copy' of testimony of J. Edgar Hoover before a subcommittee of the Committee on Appropriations for the House of Representatives, 88th Congress, First Session. Apparently, accompanying Hoover's testimony were certain documents, for example, copies of correspondence between Hoover and Levine, a copy of the article published in 'The Nation' and a transcribed reproduction of a radio broadcast by Levine from Radio Station WAMUFM, Washington, D. C., Oct. 30, 1962. No copy of Hoover's testimony was shown to Levine nor was it included in the record forwarded to this Court in response to Levine's application for admission to practice. If Hoover's testimony before the subcommittee were used by the Committee on Examinations and Admissions for any purpose other than to suggest areas of investigation, it would, of course, be hearsay and a denial of due process in that Levine would be denied the right of confrontation, Willner v. Committee on Character and Fitness of New York, supra (373 U.S. at 105, 83 S.Ct. 1175). We, therefore, treated Levine's testimony as uncontradicted and accepted it as controlling the determination.

In support of its response, the committee filed a brief, addressed to the principal points giving rise to its doubts as to Levine's integrity. We confine this decision to the matters there raised; other matters suggested by the response are deemed abandoned.

As a basis for its conclusion that Levine does not possess the sense of public responsibility which a lawyer should have, the committee points to his letter requesting reinstatement and his protestations therein of loyalty and regard for the Federal Bureau of Investigation, urging that if these statements are true then his later charges must necessarily be untrue. The committee's conclusion is that Levine assumed the role of a 'dissembler' in order to be reinstated.

We do not think, however, the record compels this conclusion. Shortly after Levine was refused reinstatement, he applied for a job as an attorney with the Justice Department at Washington, which was denied in November of 1961. He also applied for a job as an attorney with the United States Attorney's Office for the Southern District of New York, to which application he never received an answer. He learned from a personal friend in the Department of Justice, 'the reason that * * * I couldn't start working at the Justice Department was because of...