Willner v. Committee On Character and Fitness

• Citation: 83 S.Ct. 1175,373 U.S. 96,10 L.Ed.2d 224,2 A.L.R.3d 1254
• Decision Date: 13 May 1963
• Docket Number: No. 140,140
• Parties: Nathan WILLNER, Petitioner, v. COMMITTEE ON CHARACTER AND FITNESS, etc
• Court: United States Supreme Court

373 U.S. 96

83 S.Ct. 1175

10 L.Ed.2d 224

Nathan WILLNER, Petitioner,

v COMMITTEE ON CHARACTER AND FITNESS, etc.

No. 140.

Argued Feb. 21, 1963.

Decided May 13, 1963.

Henry Waldman, New York City, for petitioner.

Daniel M. Cohen, New York City, for respondent.

Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Justice BLACK.

Petitioner passed the New York bar examinations in 1936 but has not yet been admitted to practice. The present case is the latest in a long series of proceedings whereby he seeks admission.

Under New York law the Appellate Division of the State Supreme Court of each of the four Judicial Departments has power to admit applicants to the Bar. Once the State Board of Bar Examiners certifies that an applicant has passed the examination (or that an examination has been dispensed with), the Appellate Division shall admit him to practice 'if it shall be satisfied that such person possesses the character and general fitness requisite for an attorney and counsellor-at-law.' Judiciary Law, § 90(1)(a), McKinney's Consol.Laws, c. 30.

The Appellate Division is required by Rule 1 of the New York Rules of Civil Practice to appoint a committee of not less than three practicing lawyers 'for the purpose of investigating the character and fitness' of applicants. 'Unless otherwise ordered by the appellate division, no person shall be admitted to practice' without a favorable certificate from the Committee. Ibid. Provision is made for submission by the applicant to the Committee of 'all the information and data required by the committee and the Appellate Division justices.' Ibid. If an applicant has once applied for admission and failed to obtain a certificate of good character and fitness, he must obtain and submit 'the written consent' of the Appellate Division to a renewal of his application. Ibid.

The papers of an applicant for admission to the Bar are required by Rule 1(g) of the Rules of Civil Practice to be kept on file in the Office of the Clerk of the Appellate Division.

The Court of Appeals pursuant to its rule-making authority (Judiciary Law, § 53(1)) has promulgated Rules for the Admission of Attorneys and Counsellors-at-Law, Judiciary Law Appendix which provide, inter alia, that every applicant must produce before the Committee 'evidence that he possesses the good moral character and general fitness requisite for an attorney and counsellor-at-law' (Rule VIII—1), and that justices of the Appellate Division shall adopt 'such additional rules for ascertaining the moral and general fitness of applicants as to such justices may seem proper.' Rule VIII—4.

The Appellate Division to which petitioner has made application has not promulgated any 'additional rules' under Rule VIII—4. Its Character and Fitness Committee consists of 10 members; and that Committee, we are advised, has not published or provided any rules of procedure.

The statute provides that 'all papers, records and documents' of applicants 'shall be sealed and be deemed private and confidential,' except that 'upon good cause being shown, the justices of the appellate division * * * are empowered, in their discretion, by written order, to permit to be divulged all or any part of such papers, records and documents.' Judiciary Law, § 90(10). And for that purpose they may make such rules 'as they may deem necessary.' Ibid.

But New York does not appear to have any procedure whereby an applicant for admission to the Bar is served with an order to show cause by the Appellate Division before he is denied admission nor any other procedure that gives him a hearing prior to the court's adverse action.¹ The present case started with a petition by Willner to the Appellate Division seeking leave to file a de novo application which alleged the following:

Willner had been certified by the State Board of Bar Examiners as having passed the bar examinations in 1936, and the Committee in 1938, after several hearings, filed with the Appellate Division its determination that it was not satisfied and could not 'certify that the applicant possesses the character and general fitness requisite for an attorney and counsellor-at-law.' In 1943 Willner applied to the Appellate Division for an order directing the Committee to review its 1938 determination. This motion was denied without opinion. Willner in 1948 again petitioned the Appellate Division for a reexamination of his application, and for permission to file a new application. The Appellate Division permitted him to file a new application. Upon the filing of that application, the Committee conducted two hearings in 1948 and, by a report in 1950, refused to certify him for the second time. In 1951 Willner again made application to the Appellate Division for an order directing, inter alia, the Com- mittee to furnish him with statements of its reasons for its refusal to certify him or that a referee be appointed to hear and report on the question of his character and fitness. This application was denied without opinion. In 1954 Willner filed a fourth application with the Appellate Division requesting leave to file an application for admission. This was denied without opinion. The Court of Appeals refused leave to appeal, and this Court denied certiorari. 348 U.S. 955, 75 S.Ct. 445, 99 L.Ed. 746. In 1960 Willner filed a fifth application with the Appellate Division, which application was denied without opinion.

The present petition further alleged that Willner has been a member in good standing of the New York Society of Certified Public Accountants and of the American Institute of Accountants since 1951 and that he has been admitted to practice before the Tax Court and the Treasury Department since 1928. Petitioner alleged that in connection with his hearings before the Committee on his 1937 application he was shown a letter containing various adverse statements about him from a New York attorney; that a member of the Committee promised him a personal confrontation with that attorney; but that the promise was never kept. Petitioner also alleged that he had been involved in litigation with another lawyer who had as his purpose 'to destroy me'; that the secretary of the Committee was taking orders from that lawyer and that two members of the Committee were 'in cahoots' with that lawyer.

The Appellate Division denied the petition without opinion and denied leave to appeal to the Court of Appeals. Willner thereupon sought leave to appeal to the Court of Appeals and in an affidavit in support of his motion stated, 'I was never afforded the opportunity of confronting my accusers, of having the accusers sworn and cross-examining them, and the opportunity of refuting the accusations and accusers.'

The Court of Appeals granted leave to appeal and the Clerk of that Court obtained from the Clerk of the Appellate Division the file in the case. Willner, in his brief before the Court of Appeals, argued he had been denied his constitutional rights in that he had been denied confrontation of his accusers and that, in spite of the repeated attempts, he could not be sure of the Committee's reasons for refusing to certify him for admission. The Court of Appeals, after oral argument, affirmed the order without opinion. 11 N.Y.2d 866, 227 N.Y.S.2d 682, 182 N.E.2d 288. Thereafter, at Willner's request, the Court of Appeals amended its remittitur to recite that

'Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Appellant contended that he was denied due process of law in violation of his constitutional rights under the Fifth and Fourteenth Amendments of the Constitution. The Court of Appeals held that appellant was not denied due process in violation of such constitutional rights.'

We granted certiorari, 370 U.S. 934, 82 S.Ct. 1587, 8 L.Ed.2d 805.

The issue presented is justiciable. 'A claim of a present right to admission to the bar of a state and a denial of that right is a controversy.' In re Summers, 325 U.S. 561, 568, 65 S.Ct. 1307, 1312, 89 L.Ed. 1795. Moreover, the requirements of procedural due process must be met before a State can exclude a person from practicing law. '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 Protection Clause of the Fourteenth Amendment.' Schware v. Board of Bar Examiners, 353 U.S. 232, 238—239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796. As the Court said in Ex parte Garland, 4 Wall. 333, 379, 18 L.Ed. 366, the right is not 'a matter of grace and favor.'

We are not here concerned with grounds which justify denial of a license to practice law, but only with what procedural due process requires if the license is to be withheld. This is the problem which Chief Justice Taft adverted to in Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494, involving an application of a certified public accountant to practice before the Board of Tax Appeals. Chief Justice Taft writing for the Court said:

'We think that the petitioner having shown by his application that being a citizen of the United States and a certified public accountant under the laws of a state, he was within the class of those entitled to be admitted to practice under the board's rules, he should not have been rejected upon charges of his unfitness without giving him an opportunity by notice for hearing and answer. The rules adopted by the board provide that 'the board may in its discretion deny admission, suspend or disbar any person.' But this must be construed to mean the exercise of a discretion to be exercised after fair investigation, with such a notice, hearing and opportunity to answer for the applicant as would constitute due process.' Id., p. 123, 46 S.Ct. p. 217.

We have emphasized in recent years that procedural due process often requires confrontation and cross-examination of those whose...