Pushinsky v. West Virginia Bd. of Law Examiners

Decision Date04 April 1980
Docket NumberNo. 14706,14706
Citation164 W.Va. 736,266 S.E.2d 444
PartiesJon PUSHINSKY v. WEST VIRGINIA BOARD OF LAW EXAMINERS, Ralph Haines et al.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. The refusal of the Board of Law Examiners to process an application for admission to the bar may not be predicated upon the failure of an applicant to respond to questions which inquire into beliefs and associations protected by the Constitution of the United States and the Constitution of West Virginia.

2. Questions asked of an applicant to the bar by the Board of Law Examiners inquiring into mere advocacy of or knowing membership in organizations advocating the overthrow of the government by force or violence impermissibly infringe upon rights guaranteed by the First Amendment to the Constitution of the United States and by article III, §§ 3 and 7 of the West Virginia Constitution.

3. The power to prescribe qualifications for admission to the practice of law is expressly conferred upon the Supreme Court of Appeals by W.Va. Const. art. VIII, § 3.

Robert M. Bastress, Morgantown, for petitioner.

Chauncey H. Browning, Jr., Atty. Gen., Richard L. Gottlieb, Asst. Atty. Gen., Charleston, for respondents.

McGRAW, Justice.

Petitioner, Jon Pushinsky, seeks a writ of mandamus to compel the respondents, the West Virginia Board of Law Examiners, to process his application for admission to the West Virginia State Bar. We are asked to decide if the Board may decline to consider an application for admission to the practice of law when an applicant refuses to answer questions relating to his advocacy of or knowing affiliation with organizations advocating the violent or forceful overthrow of the government. We conclude that compelling applicants to answer the questions put forward here as a prerequisite to admission to the practice of law is constitutionally impermissible and we award the writ.

In June, 1979, petitioner, a citizen and resident of Wheeling, graduated from the University of Pittsburgh Law School and applied for admission to the West Virginia State Bar. Pursuant to Rule 2.000 of the Code of Rules for Admission to the Practice of Law, 1 petitioner completed a character questionnaire designed by respondents to elicit information relevant to the applicant's "moral character and qualification for membership in the bar." Question 21 of that form reads as follows:

21. Do you advocate or knowingly belong to an organization or group which advocates the overthrow of the Government of the United States of America or of the State of West Virginia by force or violence?

____ Yes ____ No ____ Decline to Answer If the answer is "yes," give details.

Petitioner checked "____ Decline to Answer" in response to this question.

Petitioner took the West Virginia Bar Examination in July, 1979. He was later notified that action on his application for admission to the bar was being delayed and was instructed to meet with respondent board member, Jeremy McCamic. At that meeting on September 26, 1979, respondent McCamic asked petitioner whether he had intended to mark "Decline to Answer" in response to Question 21. Petitioner replied in the affirmative and indicated that he would continue to respond to the question in that manner.

Subsequently, in a letter from respondents' secretary dated October 9, 1979, petitioner was informed that no further consideration would be given to his application until he answered the following questions:

No. 1. Do you advocate the overthrow of the Government of the United States of America or the State of West Virginia by force or violence? ____ No. 2. Do you knowingly belong to any organization or group which advocates the overthrow of the Government of the United States of America or the State of West Virginia by force or violence? ____

In a letter dated October 17, 1979, petitioner explained that he would not answer the respondents' questions as a matter of individual freedom and constitutional law, but agreed to cooperate fully by answering all other constitutional inquiries. Petitioner was informed by a letter dated October 30, 1979, that because of his failure to answer the questions propounded in the letter of October, his application for admission to the bar would not be processed further. Petitioner then instituted this action under the original jurisdiction of this Court.

Petitioner maintains that the questions asked him by respondents impermissibly intrude upon his freedoms of speech, association and belief as guaranteed by the First Amendment to the Constitution of the United States and by article III, section 7 of the West Virginia Constitution. 2 He asserts that the respondents cannot compel him to answer such questions and cannot refuse to process his application for failure to answer them. Respondents assert that the inability to proceed further with petitioner's application was not due to any political beliefs or associations which he may have had, but was prompted by his refusal to respond to questions propounded by the Board. It is the position of the respondents that Question 21 and the October 9 questions relate to petitioner's good moral character and therefore serve a legitimate state purpose. They maintain that irrespective of petitioner's actual associations or activities with respect to advocating the overthrow of the government, 3 his refusal to answer the questions obstructs the respondents' investigations and is sufficient justification for the board's failure to process the application.

At the outset, we do not think it can be maintained that petitioner failed to respond to Question 21 on the character questionnaire. Petitioner chose one of the three possible answers which respondents provided to the question. The questionnaire did not require any further explanation of the "Decline to Answer" choice and did not indicate that it was an unacceptable answer. Irrespective of which answer was chosen by petitioner, it is clear that he did in fact answer the question as put to him. 4

Petitioner did, however, refuse to answer "yes" or "no" to the questions asked by respondents in the October 9 letter. It was upon this failure to reply that respondents refused to proceed further with petitioner's application.

I

The United States Supreme Court has discussed the issue of whether a state can compel applicants to the bar to answer questions relating solely to membership in certain organizations, consistent with the First Amendment. In Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971), and In re Stolar, 401 U.S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657 (1971), the applicants were denied admission to the bars of Arizona and Ohio, respectively, for refusing to answer questions concerning their past and present affiliation with groups advocating the violent overthrow of the government. 5 A plurality of the Court found that because the inquiries were so broad and vague as to include associations protected by the First Amendment, as well as unprotected ones, the State could not compel an applicant to answer those questions as a prerequisite to admission to the bar without violating his or her right to associate. "(W)hen a State attempts to make inquiries about a person's beliefs or associations, its power is limited by the First Amendment. Broad and sweeping state inquiries into these protected areas . . . discourage citizens from exercising rights protected by the Constitution." Baird, supra, 401 U.S. at 6, 91 S.Ct. at 706. We think respondents' questions here suffer the same constitutional infirmity of overbreadth as did the inquiries in Baird and Stolar.

Question No. 1, dealing with petitioner's personal advocacy of the violent overthrow of the government by force or violence, seems to encompass all advocacy, including that which the United States Supreme Court has held to be protected by the First Amendment. In Stolar, that Court declared that the State may not "penalize petitioner solely because he personally . . . 'espouses illegal aims' " 401 U.S. at 28-29, 91 S.Ct. at 716, citing Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), and Baird. That Court has also held that the First Amendment does not permit a State to proscribe advocacy of the use of violent or illegal action except where the advocacy "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). Indeed, a distinction has long been made between "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence" and "preparing a group for violent action and steeling it to such action." Noto v. U. S., 367 U.S. 290, 297-298, 81 S.Ct. 1517, 1520-1521, 6 L.Ed.2d 836 (1961). Statutes failing to make the distinction between "advocacy of the abstract" and "advocacy of action" have been struck down as impermissible intrusions upon the guarantees of the First and Fourteenth Amendments. 6

Respondents argue that the distinction between advocacy of action and advocacy of the abstract is not applicable here since Brandenburg and Noto dealt with the standard under which an individual can be criminally prosecuted. They contend that the standard is not the same when dealing with questions put to an applicant to the bar. We think, however, that the distinction was not intended as a standard for determining criminal liability but rather as a demarcation between those forms of speech and association protected by the First Amendment, and therefore unable to be abridged by Congress or the States in any manner, and those that are not so protected. The Supreme Court has recently applied the principle in a case not involving criminal sanctions. See Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 94 S.Ct. 656, 38 L.Ed.2d 635 (1974).

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