Monaghan, In re, 1937

• Decision Date: 15 August 1966
• Docket Number: No. 1937,1937
• Citation: 222 A.2d 665,126 Vt. 53
• Parties: In re Carleton N. MONAGHAN.
• Court: Vermont Supreme Court

Page 665

222 A.2d 665

126 Vt. 53

In re Carleton N. MONAGHAN.

No. 1937.

Supreme Court of Vermont.

Aug. 15, 1966.

Rehearing Denied Sept. 13, 1966.

Wick, Dinse & Allen, Burlington, Carleton N. Monaghan, pro se, for petitioner.

Robert K. Bing, Burlington, for the Bench and Bar.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KEYSER, Justice.

The petitioner, a man 56 years old, by his application to this court seeks the right to take the examination for admission to the Vermont Bar to be given to qualified applicants in September 1966. This proceeding is the culmination of a series of applications filed annually with the board of bar examiners by the petitioner beginning in 1959.

The rules promulgated by this court relating to admission of an attorney to practice law in this state under 4 V.S.A. § 841 provide that each applicant for admission shall be of 'good moral character'. Rule 23, 1. A board of bar examiners consisting fo six persons (lawyers), appointed by this court under 4 V.S.A. § 842, investigate the applicant's qualification and fitness for admission. Rule 25, 2. This section reads in part as follows:

'The board of examiners shall satisfy themselves that each applicant has complied with the rules entitling him to take the examination and shall make a thorough investigation respecting the applicant's moral character and fitness for admission and report to the court the nature and result of such investigation. * * *'

The board of examiners has denied all previous applications of the petitioner to take the bar examinations for the reason that the members were unable to favorably certify the applicant's good moral character and fitness for admission. The basis of this action by the board was the applicant's record of conviction for several violations of the law.

The first offense took place on March 15, 1952 as a result of which the applicant was summoned to Franklin Municipal Court and charged with (1) intoxication, (2) assaulting and beating his wife, and (3) intentionally pointing a firearm at his son. The applicant pleaded guilty to breach of the peace and was given a suspended sentence to the House of Correction for not less than one nor more than two years and ordered to pay a fine of $25.00 and costs. The second offense was a violation of the law of the road in January 1955 to which the applicant pleaded nolo. The third offense was in July 1959 when the applicant was again before the Franklin Municipal Court charged with driving while intoxicated and careless and negligent driving. The applicant refused to take a blood test and as a result his license was suspended under the statute, 23 V.S.A. § 1191. The applicant was arrested at the scene of the accident and spent one or two nights in the Franklin County Jail. Subsequently he pleaded nolo to careless and negligent driving and was fined. The other charges were nolle prossed.

The denial of the board for the petitioner to take the 1960 examinations was before this court for review, In re Monaghan, 122 Vt. 199, 167 A.2d 81. At that time (1960), in sustaining the action of the board, we said: 'The court records of conviction do not disclose a great depravity of character; however, it must be admitted that they do indicate in the petitioner the want of that integrity which the law demands of those who are allowed the privilege of practicing law. The report (of the board to the court) shows an absence of that high character which the state intends shall be possessed of those who desire to practice as attorneys in the courts of this state.'

Until now the applicant has never had a formal hearing under due process on the issue of his good moral character and fitness. However, in July 1960, the board chairman did suggest to him the possibility of a judicial review. The inquiry, or investigation, conducted by the board, or by one or more of its members, generally is informal and for the most part is based on ex parte statements. It is the result of this investigation of the applicant's moral character and fitness for admission that has afforded the basis for the action of the board. The applicant claims he is qualified to take the upcoming examination in September and requested a hearing to determine this fact.

If the privilege of taking the bar examinations is to be withheld on the lack of good character and fitness, procedural due process requires that the applicant be given an opportunity for a hearing on the charges and statements made against him. He must be afforded an opportunity to be confronted with, and to cross-examine, witnesses who supply information adverse to him. Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224, 2 A.L.R.3d 1254, 1259, 1260; Anno. 2 A.L.R.2d 1266. Such hearing may not be automatically required in every case but rather it depends upon the circumstances and the source and character of any derogatory matter. Id. at 2 A.L.R.3d 1262.

Because of the past history of this matter and to satisfy the requirements of due process and a fair hearing, this court, after conference with counsel for the petitioner and the state, adopted the recommendation of the majority of the board of bar examiners that a commissioner be appointed to take testimony on the question of the applicant's character and to make his report to this court. The board of bar examiners which serves as an 'arm' to this court, is, except in the rarest of cases, as here, the only proper body to hold such a hearing.

In this case the assigned responsibilities of the board for the proceedings were completely carried out, and came to an end with the appointment of a commissioner.

Commissioners appointed by the court are but agents and officers of the court to investigate the subject matter submitted to them, and the court is not bound by their action. Gray v. Middleton, 56 Vt. 53, 57.

The function of the commissioner is to report the facts which he has done by making a full and thorough report. The facts reported by the commissioner do not have the same standing as findings of fact made by a master or auditor. It is the responsibility of this court to take appropriate action on those facts we find are supported by competent and material evidence and then arrive at a decision.

It is this court, after receiving the report and recommendation of the board, or as in this case, the findings of the commissioner, that ultimately must be convinced of the applicant's good moral character and fitness and takes the final and decisive action. Heiberger v. Clark, 148 Conn. 177, 169 A.2d 652, 655. There has been no question made in the past, or now, that the applicant is not otherwise qualified to take the bar examinations.

The sole question in issue is the petitioner's present good noral character and general fitness. As such it is a matter of substantive fact and law. Here, character is not collateral or remote; it is the central substantive concern of this case. The rules of the admission and treatment of evidence of character have been generally formulated with respect to the issue of testimonial credibility. In such a case the issue is not governed by the same considerations as apply here since we are concerned with facts, not credibility. On this issue the applicant assumes the burden of proof. In re Monaghan, supra, 122 Vt. at p. 205, 167 A.2d 81.

Therefore, probing the knowledge of a witness with respect to character-reputation testimony is not collateral but central. Under the usual rule it is proper to inquire of the impeaching witness as to the source of his information. He may be asked to name the specific persons who have spoken against the party sought to be impeached and as to what facts they specified. Wigmore on Evidence, Third Edition, § 1111B, citing among other cases, Willard v. Good-enough, 30 Vt. 393, 396, where the court said: '(T)he cross-examination may extend to every matter of fact within the witness' knowledge bearing on the fact of the bad character to which he has testified. * * *' Being permitted in the ordinary testimonial situation, it may be pursued as of right in the situation presented here.

Where any fact or evidence adverse to an applicant is uncovered, he cannot be denied sufficient knowledge of what it is and an opportunity to rebut or explain it. Application of Warren, 149 Conn. 266, 178 A.2d 528.

In the case of In re Crum, 103 Or. 296, 204 P. 948, the court said this:

'In a proceeding of this kind, the applicant is entitled to confront the witnesses, to subject them to cross-examination, and to invoke the protection of the tried, wise, and well-settled rules of evidence. In re Eldridge, 82 N.Y. 161, 37 Am.Rep. 558.'

'It has been written that-

'It is essential to the administration of justice according to law, that the recognized rules of evidence should be observed in this class of cases as well as in all others.' People v. Amos, 246 Ill. 299, 92 N.E. 857, 138 Am.St.Rep. 239.'

And again in that case the court said, 'Proceedings had for the admission and disbarment of attorneys at law are alike judicial.'

The record indicates that the question to be resolved is a complex and difficult one. Needless to say the matter is of vital importance to the petitioner. Likewise, we have a profound interest in protecting the courts and the public from persons who lack the essential qualifications of moral character and fitness.

Good character in the members of the bar is essential to the preservation of the integrity of the courts. The duty and power of the court to guard its ports against intrusion by men and women who are mentally and morally dishonest, unfit because of bad character, evidenced by their course of conduct, to participate in the administrative law, would seem to be unquestioned in the matter of preservation of judicial dignity and integrity. Gould v. State, 99 Fla. 662, 127 So. 309, 69 A.L.R. 699; Heiberger v. Clark, supra, p. 655 of 169 A.2d.

The...