Sheiner v. State

• Decision Date: 29 July 1955
• Citation: 82 So.2d 657
• Parties: Leo SHEINER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 657

82 So.2d 657

Leo SHEINER, Appellant,

v. The STATE of Florida, Appellee.

Supreme Court of Florida, En Banc.

July 29, 1955.

Rehearing Denied Oct. 3, 1955.

Louis M. Jepeway and Jack Kehoe, Miami, for appellant.

George A. Brautigam, State's Atty., Miami, Richard W. Ervin, Atty. Gen., and Ellis S. Rubin, Asst. Atty. Gen., for appellee.

Darrey A. Davis, Miami Beach, on behalf of the Florida Bar, Herbert R. O'Conor, Baltimore, Md., Chairman, Committee of American Bar Ass'n, Malcolm P. Sharp, President, Chicago, Ill., Jessica Davidson, Secretary, Osmond K. Fraenkel, New York City, and John M. Coe, Pensacola, for National Lawyers Guild, as amici curiae.

TERRELL, Justice.

This case had its origin in a suggestion seasonably filed in the Circuit Court of Dade County to which was appended a transcript of certain evidence taken by a Sub-Committee of the United States Senate at New Orleans, March 18, 1954. Appellant testified before this Committee but declined to answer questions relating to his alleged membership in the Communist Party and other subversive organizations. Based on this suggestion, the state attorney filed a motion to disbar appellant as authorized by F.S. Section 39.24 et seq., F.S.A., otherwise F.S. Section 454.24, F.S.A. The pertinent part of the motion to disbar is predicated on '(a) unprofessional acts which unfit him for association with the fair and honorable members of the profession, (b) deceit or misconduct in his office of attorney and (c) violating the code of ethics prescribed for members of the bar of the State of Florida,' in that he is or has been a member of the Communist Party, that he refuses to answer questions regarding his membership in groups which advocate and teach the forcible overthrow of constitutional government of the United States, basing his refusal to answer on the protection given him against self-incrimination by the First and Fifth Amendments to the Federal Constitution and Sections 12 and 13, Declaration of Rights, F.S.A., Constitution of Florida.

To the motion to disbar issue was tendered by a sworn answer and the cause came on for hearing before the court, who propounded two questions to appellant-Have you ever been a member of the Communist Party? Are you now a member of the Communist Party? Appellant declined to answer both questions, claiming protection from self-incrimination under provisions of State and Federal Constitutions. Other testimony was taken but it is not material to the issue presented. The order of disbarment was then entered from which this appeal was taken.

Historically, the privilege against self-incrimination was raised as early as the twelfth century but was limited to inquisitorial proceedings of the Star Chamber and the High Commission of England. It was granted as a protection against religious dissent or other mental convictions, including religious or political heresy. In the colonies the privilege had to do with political inquisitions by prerogative courts. It may, therefore, be reasonably inferred that the inclusion of the privilege against self-incrimination in the fundamental law was to halt unwarranted inquisitions, particularly in cases where political or religious believers were involved. Noonan, 'Inferences from the Invocation of the Privilege against Self-Incrimination,' 41 Va.Law Rev. 311, 315 (1955). A pertinent reason for the privilege now is that one charged with crime should not be required to furnish the state means to convict him. See State ex rel. Feldman v. Kelly, Fla. 1954, 76 So.2d 798.

Time and Circumstances have wrought many exceptions to the rule. In Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, the court held that the privilege against self-incrimination relates solely to testimony which might lead to defendant's prosecution for crime. It can not be invoked to protect one from removal from office under an act that forbids political activity. Pfitzinger v. U. S. Civil Service Commission, D.C.N.J.1951, 96 F.Supp. 1. The 'setting' of the question has much to do with determining the danger of self-incrimination. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118. The discharge of teachers for refusing to testify as to communist activities has been upheld on the ground that they were unfit to teach. Daniman v. Board of Education of City of New York, 306 N.Y. 532, 119 N.E.2d 373; Faxon v. School Committee of Boston, 1954, 331 Mass. 771, 120 N.E.2d 772; Board of Education of City of Los Angeles v. Wilkinson, 125 Cal.App.2d 100, 270 P.2d 82. The courts have sanctioned the dismissal of police officers for exercising the constitutional privilege of refusing to testify before a grand jury investigating crime. Christal v. Police Commission of City and County of San Francisco, 33 Cal.App.2d 564, 92 P.2d 416; see also Drury v. Hurley, 339 Ill.App. 33, 88 N.E.2D 728; Scholl v. Bell, 125 Ky. 750, 795-797, 102 S.W. 248; Canteline v. McClellan, 282 N.Y. 166, 25 N.E.2d 972.

These cases proceed on the theory that whereas the officers have a constitutional right to refuse to answer under the circumstances they have no constitutional right to remain police officers in the face of clear violation of the duty imposed upon them to prevent and expose crime and to disclose all information known to them which may lead to the lawbreakers' apprehension and punishment. The Supreme Court of California invoked a similar rule against one applying for admission to the bar. Minutes of Supreme Court of California, 43 A.C. No. 17, page 2. Our attention is also called to an advisory opinion of the Supreme Judicial Court of Massachusetts, Opinion of the Justices, 126 N.E.2d 100, addressed to the House of Representatives, dated April 13, 1955, holding that a proposed act of that state providing for the discharge of certain teachers in any public or private university, college or school who refuse to answer questions relative to their membership in the Communist Party would be unconstitutional. Legions of cases hold that one can not be required to testify to that which may lead to his prosecution for crime. The point with which we are concerned here is whether or not immunity against self-incrimination is available to a member of the bar in a proceeding brought to disbar him. In other words, does it warrant him in refusing to answer questions relating to his membership in the Communist Party or other subversive organizations. Must the rules governing due process be accorded him in proving subversive charges against an attorney?

Refusal to answer the two questions propounded to appellant account of the protection against self-incrimination guaranteed by the State and Federal Constitutions, in addition to evidence taken before the Congressional Committee at New Orleans with reference to his activities in connection with the Communist Party and kindred subversive organizations, was the sole basis for the order of disbarment. The trial court proceeded on the theory that the practice of law is not a right but a privilege, that the state may grant or withhold it, or may withdraw it when the holder violates the trust imposed in him and being so, the right of protection against self-incrimination was not available to him.

The order of disbarment was supported by the following cases: Martin v. Law Society of British Columbia, 3 Dominion Law Reports 173; Cohen v. Wright, 22 Cal. 293; In re Margolis, 269 Pa. 206, 112 A. 478, 12 A.L.R. 1186; In re Smith, 133 Wash. 145, 233 P. 288, 43 A.L.R. 102; In re Taylor, 309 Ky. 388, 217 S.W.2d 954; In re Keenan, 310 Mass. 166, 37 N.E.2d 516, 137 A.L.R. 766; Lambdin v. State, 150 Fla. 814, 9 So.2d 192, and Welanko's Case, 99 N.H. 413, 112 A.2d 50. From the cases above and others, it is contended that there is an important distinction between one's status as an individual and his status as an attorney, that bar membership is a privilege, that it is not a right and that it is controlled by the courts unless regulated by the State or Federal Constitution. As to some of those who were called and refused to testify in said cases, the inference of guilt was indulged. The trial court followed that rule in this case for which we think he was in error.

The court was also of the view that when appellant was confronted with the charges against him, he should have explained fully his connection with the Communist Party and other subversive fronts, if any he had, instead of taking refuge in the Fifth Amendment. The following cases support this view: In re Wellcome, 23 Mont. 450, 59 P. 445; Fish v. State Bar of California, 214 Cal. 215, 222, 4 P.2d 937; In re Fenn, 235 Mo.App. 24, 128 S.W.2d 657; In re Anastaplo, 3 Ill.2d 471, 121 N.E.2d 826. These cases have been examined and the factual background is different from that in the case at bar. The charges were clearly proven as to some of them; as to others they were admitted or not controverted, or there was no showing why the order made was improper.

In this case the Circuit Court held in effect that as an individual appellant may seek shelter under the Fifth Amendment, but if he does and refuses to answer whether or not he is now or has ever been a member of the Communist Party, or other subversive organizations, the privilege to practice law may be withdrawn from him and his name stricken from the roll of attorneys. The Code of Ethics, 145 Fla. 763, 31 F.S.A. 420, Section 1, Oath of Admission; Petition of Florida State Bar Ass'n, 134 Fla. 851, 186 So. 280; Petition of Florida State Bar Ass'n, Fla.1949, 40 So.2d 902; Lambdin v. State, supra, and Joopanenko v. Gavagan, Fla.1953, 67 So.2d 434, are relied on to support this holding.

We agree that no lawyer trained and educated in the democratic tradition can become a member of the Communist Party or other subversive organization without forfeiting his privilege to practice law. To subscribe to the oath required for admission to the bar and then affiliate with an organization whose avowed...