Schware v. Board of Bar Examiners of the State of New Mexico

Citation64 A.L.R.2d 288,1 L.Ed.2d 796,77 S.Ct. 752,353 U.S. 232
Decision Date06 May 1957
Docket NumberNo. 92,92
CourtU.S. Supreme Court

Mr Herbert Monte Levy, New York City, for the petitioner.

Mr. William A. Sloan, Albuquerque, N.M., for the respondent.

Mr. Fred M. Standley, Clovis, N.M., for the respondent.

Mr. Justice BLACK delivered the opinion of the Court.

The question presented is whether petitioner, Rudolph Schware, has been denied a license to practice law in New Mexico in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

New Mexico has a system for the licensing of persons to practice law similar to that in effect in most States.1 A Board of Bar Examiners determines if candidates for admission to the bar have the necessary qualifications. When the Board concludes that an applicant qualifies it recommends to the State Supreme Court that he be admitted. If the court accepts the recommendation, the applicant is entitled to practice law upon taking an oath to support the constitutions and laws of the United States and New Mexico. An applicant must pass a bar examination before the Board will give him its recommendation. The Board can refuse to permit him to take this examination unless he demonstrates that he has 'good moral character.'

In December 1953, on the eve of his graduation from the University of New Mexico School of Law, Schware filed an application with the Board of Bar Examiners requesting that he be permitted to take the bar examination scheduled for February 1954. His application was submitted on a form prescribed by the Board that required answers to a large number of questions. From the record, it appears that he answered these questions in detail. Among other things, he disclosed that he had used certain aliases between 1933 and 1937 and that he had been arrested on several occasions prior to 1940. When he appeared to take the examination, the Board informed him that he could not do so. He later requested a formal hearing on the denial of his application. The Board granted his request. At the hearing the Board told him for the first time why it had refused to permit him to take the bar examination. It gave him a copy of the minutes of the meeting at which it had voted to deny his application. These minutes read:

'No. 1309, Randolph 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.'2

At the hearing petitioner called his wife, the rabbi of his synagogue, a local attorney and the secretary to the dean of the law school to testify about his character.3 He took the stand himself and was thoroughly examined under oath by the Board. His counsel introduced a series of letters that petitioner had written his wife from 1944 through 1946 while he was on duty in the Army. Letters were also introduced from every member of petitioner's law school graduating class except one who did not comment. And all of his law school professors who were then available wrote in regard to his moral character. The Board called no witnesses and introduced no evidence.

The record of the formal hearing shows the following facts relevant to Schware's moral character. He was born in a poor section of New York City in 1914 and grew up in a neighborhood inhabited primarily by recent immigrants. His father was an immigrant and like many of his neighbors had a difficult time providing for his family. Schware took a job when he was nine years old and throughout the remainder of school worked to help provide necessary income for his family. After 1929, the economic condition of the Schware family and their neighbors, as well as millions of others, was greatly worsened. Schware was then at a formative stage in high school. He was interested in and enthusiastic for socialism and trade-unionism as was his father. In 1932, despairing at what he considered lack of vigor in the socialist movement at a time when the country was in the depths of the great depression, he joined the Young Communist League.4 At this time he was 18 years old and in the final year of high school.

From the time he left school until 1940 Schware, like many others, was periodically unemployed. He worked at a great variety of temporary and ill-paying jobs. In 1933, he found work in a glove factory and there he participated in a successful effort to unionize the employees. Since these workers were principally Italian, Schware assumed the name Rudolph Di Caprio to forestall the effects of anti-Jewish prejudice against him, not only in securing and retaining a job but in assisting in the organization of his fellow employees. In 1934 he went to California where he secured work on the docks. He testified that he continued to use the name Rudolph Di Caprio because Jews were discriminated against in employment for this work. Wherever Schware was employed he was an active advocate of labor organization. In 1934 he took part in the great maritime strikes on the west coast which were bitterly fought on both sides. While on strike in San Pedro, California, he was arrested twice on 'suspicion of criminal syndicalism.' He was never formally charged nor tried and was released in each instance after being held for a brief period. He testified that the San Pedro police, in a series of mass arrests jailed large numbers of the strikers.

At the time of his father's death in 1937 Schware left the Communist Party but later he rejoined. In 1940 he was arrested and indicted for violating the Neutrality Act of 1917. He was charged with attempting to induce men to volunteer for duty on the side of the Loyalist Government in the Spanish Civil War. Before his case came to trial the charges were dismissed and he was released. Later in 1940 he quit the Communist Party. The Nazi-Soviet Non-Aggression Pact of 1939 had greatly disillusioned him and this disillusionment was made complete as he came to believe that certain leaders in the Party were acting to advance their own selfish interests rather than the interests of the working class which they purported to represent.

In 1944 Schware entered the armed forces of the United States. While in the service he volunteered for duty as a paratrooper and was sent to New Guinea. While serving in the Army here and abroad he wrote a number of letters to his wife. These letters show a desire to serve his country and demonstrate faith in a free democratic society. They reveal serious thoughts about religion which later led him and his wife to associate themselves with a synagogue when he returned to civilian life. He was honorably discharged from the Army in 1946.

After finishing college, he entered the University of New Mexico law school in 1950. At the beginning he went to the dean and told him of his past activities and his association with the Communist Party during the depression and asked for advice. The dean told him to remain in school and put behind him what had happened years before. While studying law Schware operated a business in order to support his wife and two children and to pay the expenses of a professional education. During his three years at the law school his conduct was exemplary.

At the conclusion of the hearing the Board reaffirmed its decision denying Schware the right to take the bar examination. He appealed to the New Mexico Supreme Court. That court upheld the denial with one justice dissenting. 60 N.M. 304, 291 P.2d 607, 630. In denying a motion for rehearing the court stated that:

'(Schware's membership in the Communist Party), together with his other former actions in the use of aliases and record of arrests, and his present attitude toward those matters, were the considerations upon which (we approved the denial of his application).'

Schware then petitioned this Court to review his case alleging that he had been denied an opportunity to qualify for the practice of law contrary to the Due Process Clause of the Fourteenth Amendment. We granted certiorari. 352 U.S. 821, 77 S.Ct. 34, 1 L.Ed.2d 46. Cf. In re Summers, 325 U.S. 561, 562, 564 569, 65 S.Ct. 1307, 1308, 1309, 1312, 89 L.Ed. 1795. And see Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722.

A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protec- tion Clause of the Fourteenth Amendment.5 Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. Cf. Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. And see Ex parte Secombe, 19 How. 9, 13, 15 L.Ed. 565. A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590; Cummings v. State of Missouri, 4 Wall. 277, 319—320, 18 L.Ed. 356. Cf. Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940. Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory. Cf. Yick Wo v. Hopkins, 118...

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