Schware v. Board of Bar Examiners of New Mexico, 5847

• Citation: 1955 NMSC 81,291 P.2d 607,60 N.M. 304
• Decision Date: 07 September 1955
• Docket Number: No. 5847,5847
• Parties: Rudolph SCHWARE, Petitioner, v. BOARD OF BAR EXAMINERS OF the State of NEW MEXICO.
• Court: Supreme Court of New Mexico

Page 607

291 P.2d 607

60 N.M. 304

Rudolph SCHWARE, Petitioner, v. BOARD OF BAR EXAMINERS OF the State of NEW MEXICO.

No. 5847.

Supreme Court of New Mexico.

Sept. 7, 1955.

Dissenting Opinion Sept. 30, 1955.

Rehearing Denied Dec. 19, 1955.

P. H. Dunleavy, Albuquerque (Key & Brown, Edward G. Parham, Albuquerque, on motion for rehearing only), for petitioner.

Richard H. Robinson, Atty. Gen., Fred M. Standley, Asst. Atty. Gen., William A. Sloan, Albuquerque, for respondent.

McGHEE, Justice.

This matter is before us on a pleading we treat as a petition to review the action of the State Board of Bar Examiners in denying the application of Rudolph Schware to take the examination for admission to practice law in this state.

In December, 1953, the petitioner applied for leave to take the bar examination in February, 1954. He was advised by letter that he would be entitled to do so. When he presented himself for examination he was interviewed by the Board of Bar Examiners. No transcript was made of this interview, but at its close the following action was taken by the board:

'No. 1309, Rudolph Schware. It is moved by Board Member Frank Andrews that the application of Rudolph Schware to take the bar examination be denied for the reason that, taking into consideration the use of aliases by the applicant, his former connection with subversive organizations, and his record of arrests, he has failed to satisfy the Board as to the requisite moral character for admission to the Bar of New Mexico. Whereupon said motion is duly seconded by Board Member Ross L. Malone, and unanimously passed.'

A second hearing was held before the board on July 16, 1954, and transcript made thereof. At the conclusion of this hearing the board was of the unanimous opinion the former determination should stand.

It is agreed by all that this court has plenary jurisdiction to review the decision of the board. In re Gibson, 1931, 35 N.M. 550, 4 P.2d 643; In re Royall, 1928, 33 N.M. 386, 268 P. 570. In such review this court is not limited by appellate rules, but the matter is considered originally.

The substance of petitioner's argument is made under two points, the first of which is: The right to practice law is a property right protected by the Fifth and Fourteenth Amendments of the Constitution of the United States. Under this point reference is made to the cases of Ex parte Garland, 1866, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366, and Cummings v. The State of Missouri, 1866, 4 Wall. 277, 71 U.S. 277, 18 L.Ed. 356. In the latter case it is said:

'* * * We do not agree with the counsel of Missouri that 'to punish one is to deprive him of life, liberty, or property, and that to take from him anything less than these is no punishment at all.' The learned counsel does not use these terms--life, liberty, and property--as comprehending every right known to the law. He does not include under liberty freedom from outrage on the feelings as well as restraints on the person. He does not include under property those estates which one may acquire in professions, though they are often the source of the highest emoluments and honors. The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. * * *'

It is not necessary to class membership in the legal profession with ownership of real estate or other tangible article in order to recognize an individual has a right therein. We regard as inutile an attempt to categorize it at all. But, granting that such membership is a species of property, as that word is employed in the Constitution, it does not follow, and we do not take it as contended by petitioner, that the right to its enjoyment is absolute and unfettered by any mode of regulation.

In an annotation in 98 L.Ed. 851, at p. 852, substantive due process in its application to the type of property with which we are here concerned is described in the following language:

'Substantive due process of law may be roughly defined as the constitutional guaranty that no person will be deprived of his life, liberty, or property for arbitrary reasons. Such a deprivation is constitutionally supportable only if the conduct from which the deprivation flows is proscribed by reasonable legislation (that is, legislation the enactment of which is within the scope of legislative authority), reasonably applied (that is, applied for a purpose consonant with the purpose of the legislation itself).'

The board acted under Rule III of the Rules Governing Admission to the Bar of New Mexico, which provides 'that the Board of Bar Examiners may decline to permit any such applicant to take the (bar) examination when not satisfied of his good moral character.' We do not see how this requirement, which in the same or similar language is universal in this country so far as we know, Annotation 72 A.L.R. 929, can seriously be challenged as unreasonable.

Judge Cardozo has this to say of the requirement of good moral character upon admission to the bar, and afterward:

'Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them. Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards. (Citing cases.) Whenever the condition is broken the privilege is lost. To refuse admission to an unworthy applicant is not to punishhim for past offenses. The examination into character, like the examination into learning, is merely a test of fitness. * * *' In re Rouss, 1917, 221 N.Y. 81, 116 N.E. 782, 783.

The cases are numerous, too, which hold that by asking admission into the legal profession an applicant places his good moral character directly in issue and bears the burden of proof as to that issue. Spears v. State Bar, 1930, 211 Cal. 183, 294 P. 697, 72 A.L.R. 923; In re Wells, 1917, 174 Cal. 467, 163 P. 657; Rosencranz v. Tidrington, 1923, 193 Ind. 472, 141 N.E. 58, 28 A.L.R. 1136; In re Weinstein, 1935, 150 Or. 1, 42 P.2d 744.

Thus we are brought up to the controverted, substantial question before us of whether the petitioner has produced proof of his good moral character so as to entitle him to take the examination for membership in the bar of this state, as contended by him under his second point.

An examination of this sort is concerned ultimately with the subjective character of the individual. Character cannot be laid upon a table, so we must resort to two kinds of indirect evidence: First, the pattern of conduct an individual follows, and, second, a consideration of the regard his fellows and associates have for him. This investigatory technique can, at best, but dimly throw into relief the architecture of character; still, it is all we have. In this particular inquiry the technique leads us through petitioner's own disclosures to behavior which cannot be severed from a social ideology which now stands athwart so much of the Eastern World dividing men from men--Communism.

The legal status of the Communist Party in the United States is far different today from that which obtained during the years of the Depression and following, when petitioner was a member of it. He calls our attention to the fact that as late as 1948 the Communist Party was a recognized political party and had candidates for the Presidency of the United States every four years up to and including 1948. We do not overlook the fact that during the years petitioner was a member of the Young Communist League and the Communist Party, from 1932 to 1940, such membership was not unlawful. But that fact does not restrain us from examining his former associations and actions, including his arrests and his use of aliases, and his present attitude toward those matters, as contained in his statements to the board, in order to arrive at a conclusion as to his character. As said in American Communications Ass'n v. Douds, 1950, 339 U.S. 382, 411, 70 S.Ct. 674, 690, 94 L.Ed. 925, 'the state of a man's mind must be inferred from the things he says or does.'

It is generally held that an inquiry into character preceding admission to the bar is different from the inquiry had upon proceedings to disbar. This is already exemplified in part by our earlier reference to the rule that an applicant bears the burden of proof of good character. It is also to be noted in the scope of inquiry. It is said in In re Wells, supra [174 Cal. 467, 163 P. 661]:

'* * * In a proceeding to disbar an attorney the burden is on the accuser to prove moral turpitude. The requirement on his admission is to prevent the accrediting of untrustworthy persons as fit to receive the confidence attending upon the relation of attorney and client. The inquiry may extend to his general character as well as to particular acts. It is borader in its scope than that in a disbarment proceeding. The court may receive any evidence which tends to show his character for honesty, integrity, and general morality, and may no doubt refuse admission upon proofs that might not establish his guilt of any of the acts declared to be causes for disbarment.'

Similarly, in In re Farmer, 1926, 191 N.C. 235, 131 S.E. 661, 663, we find this statement:

'This 'upright character,' prescribed by the statute, as a condition precedent to the applicant's right to receive license to practice law in North Carolina, and of which he must, in addition to other requisites, satisfy the court, includes all the elements necessary to make up such a character. It is something more than an absence of bad character. It is the good name which the applicant has acquired, or should have acquired, through association with his fellows. It means that he must have conducted himself as a man of upright character ordinarily would, should, or does. Such character expresses itself, not in negatives nor in following the line of least resistance, but quite often in the will to do the unpleasant...