dissenting:
I must dissent from the majority opinion on the ground that it deprives the applicant of due process of law under the Federal constitution by denying him admission to the bar in the absence of a scintilla of derogatory evidence to mar the substantial record of his good moral character, and is in direct conflict with the decisions of the United States Supreme Court in Konigsberg v. State Bar of California, 353 U.S. 252, 1 L. ed. 2d 810, and Schware v. Board of Bar Examiners, 353 U.S. 232, 1 L. ed. 2d 796.
The constitutional issue in this cause is not, as the per curiam opinion implies, whether the committee’s questions on political or subversive affiliation were constitutional. The issue is rather, even if Anastaplo were wrong about the impropriety of such questions, whether his good-faith refusal to answer them, on the ground that the first and fourteenth amendments of the Federal constitution barred such inquiry, is a sufficient basis for denying him admission to the bar for failure to establish good moral character. That issue has been determined by the United States Supreme Court in the Konigsberg case, which the majority opinion refuses to follow.
Before considering that case or the authorities cited in the majority opinion, I must point out that while I am no less sensitive to the very real danger of Communist infiltration in the bar than is the per curiam opinion, I do not believe, as the majority opinion does, that an indictment of the Communist Party, however justified, or a reiteration of the lawyer’s obligation to his country, or a warning that the nation must have power to protect itself, however appropriate, is any substitute for evidence against George Anastaplo’s moral character. Moreover, I am constrained to call attention to the distorted picture of applicant, which the per curiam opinion endeavors to create.
The opinion at the outset tries to create the taint that applicant believes in a subversive political philosophy by quoting isolated statements out of context from the 1951 record — which is not even before this court — and by completely omitting applicant’s statements respecting the right to revolution in the present record. The opinion omits applicant’s statement that his views on the right to revolution are, and have been, the same as those embodied in the Declaration of Independence and advanced by Lincoln and Daniel Webster in writings set forth in the present record. Nor does the opinion refer to applicant’s unequivocal statement in the record: “But as I said when I first appeared before the full committee on January 5, 1951, I do not think anyone would be justified at a time such as this, when the normal processes of government permit reasonable and peaceful change, to participate in action leading to the overthrow of the government. The Committee must realize that I would be no less reluctant than they to see the right of revolution exercised, except in most extreme circumstances. I trust that my position and what I have contributed to its defense indicates an abiding commitment to constitutional government.”
Instead, the opinion dismisses such testimony summarily with the statement that applicant’s views do not now require narration because the committee did not find them objectionable, after leaving the taint from the isolated statements in the prior record.
The per curiam opinion clutches at straws by even referring to Anastaplo’s views on resistance to a court decree as grounds for denying him admission to the bar, in view of his unequivocal statement that he would resist a court decree only under circumstances where constitutional government has been subverted, so that resistance would really be aimed at restoring the constitution and supporting it without reservation. Surely this is no war against the constitution, as the per curiam opinion implies. Even the minority report of the committee frankly regarded this matter of resistance to a court decree as a far fetched ground for excluding applicant, particularly in view of his own exemplary conduct during the course of his bar admission litigation these past 9 years, which is the best evidence of his reaction to court orders.
I could not, within the confines of this dissenting opinion, summarize the hours of questions, answers and arguments revealing all of applicant’s views. I have already alluded to some of them. However, since the majority opinion has sought to give a distorted picture of those views and of the nature of the proceedings, I wish to call attention to some of the questions and answers which cast light on this matter.
At the very first session, applicant was asked whether he was a member of any nationality organization. After he replied that he was not, he was asked whether he was a member of a nationality organization that had been designated by the Attorney General as subversive. Applicant refused to answer, explaining that when the question designated the organization as subversive, its intent was to elicit information about political affiliations. To such inquiry he must object on the ground that it infringed his rights under the first, and fourteenth amendments, was beyond the province of a Character and Fitness Committee, and, more particularly, was outside of the terms of the Supreme Court rehearing order of 1957. He pointed out that if the committee was interested in eliciting information, it already had the answer to this question, since he had just stated that he was not a member of any nationality organization.
In response to the query, “Are you refusing for fear that if you did answer one way or another we might be able to check and find that you have committed perjury,” applicant stated, “That is not my fear.” He added, “With reference to perjury, it is irrelevant to this situation as is any reference to the Fifth Amendment.”
He explained that he would refuse to answer on constitutional principles all questions relating to political affiliations, including those with the Democratic and Republican parties, as well as with any and all organizations on the Attorney General’s list, including the Communist Party, the K.K.K., or the Silver Shirts of America, even if the answers reflected favorably on him. He stated: “I would rather be rejected by this Committee if this question becomes crucial by taking a firm position on constitutional principles, than be accepted by seeming to take it, and at the same time taking a back door.”
Applicant added the observation that the committee, in pursuing this line of inquiry, was asking questions the answers to which it had very little doubt about. In support of that assertion he referred to a statement in a document identified under oath as accurate, apparently reporting the admission of a Justice of this court, that at the last hearing “no one of the committee or the court ever though that he [Anastaplo] was a Communist.” Applicant also reiterated that the committee had nothing in the record originally, or during the course of the intervening 7 or 8 years, to justify this line of inquiry or to indicate that he would not take his oath seriously- and in good faith. In this connection, a spokesman for the committee admitted: “No one has stated to this committee that you are or have ever been a Communist, or a member of the Ku Klux Klan, or a member of the organiaztions listed as subversive on the Attorney General’s list.”
Consequently, applicant moved that the committee desist from this line of" inquiry, which was beyond the Supreme Court mandate, was neither relevant, nor for the alleged purpose of inquiring into areas it might otherwise be uncertain about, was being pursued only to induce him to assert his constitutional objections, and was thereby highly prejudicial. The committee denied his motion.
In response to the admonition by the committee that his refusal to answer the question whether he was a member of the Communist Party “may have serious consequences,” Anastaplo replied, “Am I ineligible because I take the dissents of certain members of the Supreme Court seriously?” He then pointed out that in the Konigsberg and Schware cases (353 U.S. 252; 353 U.S. 232) even the majority of the court supported his interpretation of the law, whereby refusal to answer the questions on the grounds asserted by him would, at most, constitute merely one piece of evidence in the record. He argued that such refusal would not necessarily be adverse nor warrant rejection. His position is best stated in his letter to the committee on March 27, 1958, which is included in the record:
“Is one not obliged in the interest of good advocacy and judicial integrity to resist strenuously, even at the risk of incurring official displeasure, unconstitutional disregard of the rule of law? May not, in fact, such resistance reflect the best traditions of the bar, and thereby provide the best evidence that a character committee can desire with respect to applicant’s qualification for the practice of law?”
This precise point, that refusal to answer may be indicative of good character, is evident in this record. Applicant courageously and properly refused' to answer the unconstitutional- religious inquiries — i.e.., whether he believed in a Diety, or eternal punishment as a sanction for his oath. He stated that he would respect his duties as an attorney, with or without the oath, but did not care to speak about whether there were any religious sanctions, such as the fear of eternal punishment, back of his oath, or whether he believed in a Diety, on the grounds that the constitution barred such inquiries. This line of inquiry, persisted in since the very first session, and apparently based upon an 1856 decision, was later admitted by the committee to be improper and unconstitutional since 1870.
The per curiam opinion completely overlooked this portion of the record. I cannot follow that course, particularly since the record shows that applicant’s refusal to answer these religious questions had so prejudiced the committee that one member stated that the refusal to answer had a “substantial bearing on his [applicant’s] fitness to practice law.” Such prejudice could hardly be wiped out by the statement of the chairman that these improper questions would not be taken into consideration.
The majority opinion also ignored applicant’s argument in support of his refusal to answer the political affiliations questions, that the avowed Communist of the type the committee would want to ferret out of the profession as a menace to our government would have little difficulty in compromising constitutional principles and in giving the desired answers, and that the approach of the committee was effective only in discouraging applicants to stand by principles. I find merit in this argument.
The majority opinion makes no reference to applicant’s closing arguments, which I find indicative of his views on our form of government, and the obligation of the lawyer to that government. Here, the applicant first reviewed this cause from its inception, pointing out that the original committee action in 1951 reflected the tenor of the times, when groups tried to outdo each other in hunting possible subversives, and explaining that the Illinois Supreme Court was misled into sustaining the committee’s action by the suppression and distortion of the sequence of evidence. He reiterated the lack of foundation for the affiliation inquiries, the legal arguments supporting his position, with particular emphasis on the Konigsberg record and decision. Finally, he emphasized the basic tenets of our republican government and the obligations of the bar to preserve them, and to lead the nation by precept and example.
In addition to these significant omissions in the per curiam opinion, which give a completely misleading impression of the applicant and the hearings, I must also take issue with the scant attention paid by the per curiam opinion to the character affidavits and letters of reference submitted to the committee. In my opinion the court should have given considerable weight to these affidavits, as did the United States Supreme Court in the Schware and Konigsberg cases (353 U.S. 232, 244, 1 L. ed 2d 796; 353 U.S. 252, 265, 1 L. ed 2d 810), particularly since they were submitted at the committee’s request, on their forms, and were presented by persons of stature in the legal profession and other fields, who do not bandy about tributes such as were paid to applicant’s honesty, integrity, general conduct and character traits qualifying him for the practice of law.
The affiants included Professor Alexander Meiklejohn, Professor Emeritus of the University of Wisconsin and past president of Amherst College, in whose name the American Association of University Professors established an Annual Award; Professor Malcolm Sharp, professor of law at the University of Chicago; Professor Roscoe Steffen, professor of law at Yale University and the University of Chicago, and advocate for the Department of Justice before the United States Supreme Court; Professor Yves Simon, formerly of Notre Dame and currently professor of philosophy at the University of Chicago, and recipient of the Spellman-Aquinas Medal for excellence in philosophy from the American Catholic Philosophical Association; Richard Weaver of the University of Chicago faculty and editorial writer for Modern Age, a conservative review. Other affiants include a former chairman of the Character and Fitness Committee; a lawyer who authored a text on the canons of ethics, and contributed substantially to bar .association work; a minister, the Dean .of University College, and others who supervised Anastaplo’s work. These affiants praised applicant’s character unstintingly. We note some of the comments, which are-representative of the tenor of the affidavits. -
Professor Meiklejohn attested: “He [Anastaplo] is intellectually able, a hard, thorough student. and • moved by high devotion- to the -principles of freedom .and justice * * * unqualifiedly worthy of the highest :trust and confidence.” . . • .
Professor Sharp attested: “His [Anastaplo’s] reputation in these respects [for honesty, integrity and general conduct] is of the highest. No question has ever been raised about his honesty or his integrity, and his general conduct, characterized by friendliness, quiet independence, industry and courage, is reflected in his reputation * * *. His fellow students respect him. He is in every way among the very best of the students I have seen in my teaching experience.”
Richard Weaver attested to applicant’s unusual intelligence, fairness and personal modesty, and patriotism in the old-fashioned sense, as well as his sympathetic understanding of affiant’s conservatism. “Everything I know about applicant leaves me feeling that he is an unusually intelligent, balanced and helpful American citizen.”
Professor Yves Simon characterized Anastaplo by “intelligence, conscientiousness, sincerity and integrity,” and concluded, “I consider Anastaplo to be a young man of the most distinguished and lofty moral character.”
Dean Donohue of University College, where Anastaplo taught, refers to his honesty as “admirable and unequivocal,” and to his integrity as “perhaps even over rigid for our culture.”
Robert Coughlan, Anastaplo’s supervisor at the Industrial Relations Center, attested: “I would recommend him without the slightest reservation for any position involving the highest and most sacred trust. If admitted to the American Bar, he could do nothing that would not reflect glory on that institution.”
Attorney William Trumbull attested: “Affiant has found applicant to exhibit in all respects an exceptionally high degree of honor and integrity and profound loyalty to his country, its form of government and its ideals and to enjoy an excellent reputation for good moral character.”
In addition to this evidence, I believe that a review of the career of George Anastaplo will also cast light upon his character and fitness.
This record shows that George Anastaplo was born in 1925, in St. Louis, Missouri, where he secured his elementary school education; that the family moved to Carter-ville, Illinois, where he attended high school; and that he attended the University of Illinois for some three months before enlisting in the Air Corps, where he attained the rank of Second Lieutenant, and served some 38 months in the Pacific, European and North African theatres of war. He came out of service in February, 1947, and was attached to the Inactive Reserves until his resignation some few years ago. He was accepted by the University of Chicago for the Fall Term of 1947, and during 6 of the intervening months he attended Southern Illinois University. He secured an A.B. degree from the University of Chicago one year later, after carrying a double schedule of classes, and then attended law school. He passed the bar examination in the fall of 1950, and was graduated from law school in 1951-
After this court denied his application for admission to the bar, he, his wife, whom he married in 1949, and their child had a brief trip to Paris, where he enrolled at the Sorbonne. From there they went to Dallas, Texas, where his wife’s family resided. During their sojourn there, Anastaplo took a course in oil-and-gas law. At the end of 1951 the family returned to Chicago, and Anastaplo began working at the Industrial Relations Center on the preparation of materials for a training course for management personnel. He remained at that job until August of 1957, and also taught an adult education course at the University College of the University of Chicago. More recently he has been devoting half time to teaching at the College, and half time to an administrative post there, and is working toward his Doctor of Philosophy degree on a phase of constitutional law.
Other activities since the original character hearing in 1951 include a 6-week management study of the Socony Mobil Oil Company, in New York in the summer of 1956, pursuant to a business fellowship from the Foundation for Economic Education; and serving as an election judge at the behest of both of the major political parties, in different elections. In this connection, it may be noted that the critical question of some committee members respecting this activity, when Anastaplo refused to identify his party affiliations on constitutional grounds, prompted him to inquire of the county judge whether he had unwittingly breached any rules by serving the Republican and Democratic parties at different elections, and whether something more than pro forma identification with a political party might be necessary to serve as an election judge. He also offered to return any payment received for his services. There was, however, no breach of any rules, nor any repayment of earnings necessary.
In the light of all the foregoing evidence appearing in the current record of over 400 pages, compiled pursuant to a searching examination of applicant by the committee during some six sessions of several hours each and extended from February to May of 1958, it is not clear to me just how the majority of the committee or the per curiam opinion could conclude that applicant’s refusal to reply to the questions on political affiliations prevented the committee from determining his character and fitness. I find apposite the statement in the minority report of the committee: “* * * On thjs record, it is pure sophistry to hold that his refusals to answer have prevented our determining his character.”
I also fail to perceive the necessity for the delay of an entire year between the conclusion of the hearing and the decision of the committee. Although the majority report denied applicant admission to the bar essentially because they claimed his failure to reply to questions on membership in the Communist Party or other subversive groups prevented inquiry into subjects which bear on the issue of character, it is significant that the majority made favorable findings on all matters designed for inquiry in our rehearing order. They found that applicant’s views on the right to revolution were not objectionable; nor was there anything objectionable in his activities since the original petition was denied, or with respect to his present reputation. The report stated:
“Since applicant’s original application was denied, he has engaged principally in the academic life as an instructor and research assistant at the University of Chicago. * * * From the character affidavits and reference letters which have been submitted to us, it would appear that the applicant is well regarded by his academic associates, by professors who have taught him in school and by members of the Bar who know him personally. We have not been supplied with any information by any third party which is derogatory to Anastaplo’s character or general reputation. We have received no information from any outside source which would cast any doubt on applicant’s loyalty or which would tend to connect him in any manner with any subversive group.”
Under these circumstances, I find more cogent the rationale of the minority report that since there were no adverse findings on the questions specified for rehearing, and no derogatory information, applicant should not have been denied admission to the bar. I find entirely reasonable the minority’s argument that applicant’s refusal to answer certain questions was merely one factor which must be weighed along with the reasons for such refusal, and with other evidence; and that refusal to answer questions on grounds of devotion to constitutional principle does not “reflect adversely on character” and is a strange basis for denying admission to the bar.
With reference to the legal questions, I cannot agree with the statement in the per curiam opinion that the relevancy and constitutionality of the political-affiliations questions of bar applicants is no longer debatable. That issue has certainly not been determined in any bar admission case. It was expressly left undetermined in the Konigsberg case. In fact the court there recognized, as Anastaplo has consistently argued, that there was authority for regarding such questions as unconstitutional. The court stated at p. 270: “Prior decisions by this Court indicate that his [Konigsberg’s] claim that the questions were improper was not frivolous, (West Virginia Board of Education v. Barnette, 319 U.S. 624, 87 L. ed. 1628,) and we find nothing in the record which indicates that his position was not taken in good faith.”
The Barnette case, cited by the court, contained the following celebrated passage at p. 642: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or action their faith therein.” [Ital. supplied.]
While this passage, which has not been overruled, lends support to applicant’s position that a Character and Fitness Committee, acting for the State Supreme Court would have no right in insist that an applicant reveal his faith in any political credo, that case itself is not decisive. Nor can I agree with the per curiam opinion that the recent Barenblatt case (Barenblatt v. United States, 360 U.S. 109, 3 L. ed. 2d 1115, 79 S. Ct. 1081 (1959) is determinative of that issue, or is in any way factually analogous.
The Barenblatt case involved a contempt proceeding in which the petitioner refused to answer questions of the House Un-American Activities Committee relating to his affiliations with the Communist Party on the ground that they were barred by the first amendment. The majority opinion, to which four justices dissented, first explained that where first amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the private and public interests at stake in the particular circumstances. After reaffirming the principle of the Sweezy case (Sweezy v. New Hampshire, 354 U.S. 234, 265, 1 L. ed. 2d 1311,) that “the subordinating interest of the State must be compelling,” in order to overcome the individual rights, the Supreme Court held that the balance must be struck in favor of the governmental interests, since the pertinency of the questions was not open to doubt, and the government’s right of self-preservation justified extending its investigatory power in the domain of communist infiltration in education.
Even the broadest interpretation of the Barenblatt case, however, would not sanction the type of inquiry made by the committee herein. The court based its decision, in a great measure, on the fact that the inquiry in that case was identified at the outset as an investigation of Communist infiltration in education, and that the individual examined had just previously been identified as a member of an alleged Communist group, and was being asked about that membership.
Such circumstances are a far cry from the situation in the case at bar. It is one thing to sustain the constitutionality of subversive affiliations questions when they are propounded to one identified as a Communist, and submitted by an UnAmerican Activities Committee of the United States Congress, charged with discovering communist infiltration. It is quite another thing, however, to sanction such questions when asked of one against whom there is not a scintilla of evidence of subversive affiliations, and when the questions are submitted by a bar admission committee, charged only with ascertaining applicant’s moral character, and in no way authorized by statute or rule of court to investigate or reject members of any political persuasion from the profession.
In my judgment, furthermore, the fact that the court in the Barenblatt case so closely circumscribed its decision, limiting it to the precise circumstances before it, stressing the pertinency of the questions, and calling attention to cases where the individual interests were held paramount, does not indicate a disposition to sustain the constitutionality of such questions in all types of cases.
However, this issue is not decisive in the Anastaplo case. As hereinbefore noted, the fundamental issue is not the constitutionality of the political-affiliations questions, but rather whether applicant’s refusal to answer them could be deemed grounds for denial of admission to the bar for failure to establish good moral character. Therefore, I do not deem it necessary to try to resolve the constitutionality of the questions by analogy to the host of other related cases. (N.A.A.C.P. v. Alabama, 357 U.S. 448, 2 L. ed 2d 1488; American Communications Ass’n v. Douds, 339 U.S. 382, 94 L. ed. 925; Slochower v. Board of Higher Education, 350 U.S. 551, 100 L. ed. 692; Kent v. Dulles, 357 U.S. 116, 2 L. ed. 2d 1204; Sweezy v. New Hampshire, 354 U.S. 234, 1 L. ed. 2d 1311.) Even if this court were to conclude that the subversive affiliations questions under the circumstances did not offend the first and fourteenth amendments of the Federal constitution, and that George Anastasplo had no constitutional right to refuse to answer the committee’s question, his refusal would constitute merely one item of evidence, and we would still be obliged, under the decisions of the United States Supreme Court, to determine his moral character on the basis of the entire record. Konigsberg v. State Bar of California, 353 U.S. 252; Schware v. Board of Bar Examiners, 353 U.S. 232.
In evaluating that record, furthermore, this court may not draw any unfavorable inferences of character from an applicant’s refusal to answer questions based upon a good faith reliance on constitutional principles. Konigsberg v. State Bar of California, 353 U.S. 252, 1 L. ed. 2d 810.
Inasmuch as I am firmly convinced that the law set forth by the United States Supreme Court in the Konigsberg case is determinative of the issue in the instant case, I am obliged to closely examine that decision and the ineffective ways in which the per curiam opinion has endeavored to whittle it away and to avoid it as a precedent.
In the Konigsberg case a bar applicant who had been identified as a Communist, and had been highly critical of government policies in his writings, was interrogated about his political affiliations and beliefs by the Bar Admission Committee in order to discover whether he was, or had ever been a member of the Community Party. As in the instant case, the applicant refused to respond to such questions on the ground that they were an intrusion into areas protected by the Federal constitution. He also objected on the ground that California law did not require him to divulge his political associations or opinions in order to qualify for the bar, and that the questions about these matters were not relevant. The Committee denied his application for admission, essentially on the ground that he failed to demonstrate that he was a person of good moral character. The action of the Committee was affirmed by the State court, but was reversed by the United States Supreme Court.
That decision emphasized (1) that bar admission cannot be denied for failure to establish good moral character, unless it appears from an examination of the entire record that a reasonable man could fairly find that there were doubts about applicant’s honesty, fairness and respect for the rights of others, and for the laws of the State and the nation; (2) that much significance should be attached to the affidavits relating to applicant’s character, and the absence of derogatory testimony; and (3) that in a bar admission case no unfavorable inferences on moral character may be drawn from refusal to answer questions on constitutional grounds.
The per curiam opinion, of course, makes no reference to the court’s statement at p. 270 disposing of the precise issue involved herein: “Obviously the State could not draw unfavorable inferences as to his [applicant’s] truthfulness, candor or .his moral character in general if his refusal to answer [the political affiliations questions] was based upon a belief that the United States Constitution prohibited the type of inquiries which the Committee was making.” Nor does the per curiam opinion take cognizance of the decisive statement of the court at p. 273 : "Without some authentic reliable evidence of unlawful or immoral actions reflecting adversely upon him, it is difficult to comprehend why the State Bar Committee rejected a man of Konigsberg’s background and character as morally unfit to practice law.”
What “authentic reliable evidence of unlawful or immoral actions reflecting adversely upon him” did the committee have against George Anastaplo? His refusal to answer questions on grounds that they were improper under the first and fourteenth amendments of the constitution ? That conduct, according to the United States Supreme Court, may not be deemed adverse character evidence. The record is absolutely devoid of any conceivable derogatory evidence. If the United States Supreme Court had difficulty comprehending why Konigsberg was rejected even though there was some evidence of prior Communist membership and certain inflammatory writings, it would, a fortiori, have greater difficulty understanding why Anastaplo was denied admission to the bar where even the committee chairman admitted that there was no evidence whatever that the applicant was in any way ever connected with the Communist Party or with any subversive group.
The per curiam opinion endeavors to avoid the impact of this Konigsberg case by suggesting that it was not a final determination, since the cause was remanded to the State Court. This is specious reasoning. Obviously the case had to be remanded to the State court, for it is not the province of the United States Supreme Court to admit persons to membership to the bar of any State, but rather to determine whether the actions and standards imposed by the State in bar admission cases infringed constitutional rights. This the Supreme Court unequivocally did in the Konigsberg case, and any subsequent action by the California court in that case cannot modify, or in any way detract from the principles of law promulgated by the Supreme Court in the decision. Its determination that constitutional rights (the due-process guarantee) are infringed when a State denies an applicant admission to the bar for failure to establish good moral character, merely because he refuses on constitutional grounds to answer political or subversive affiliations questions, is binding upon this court and cannot be construed away.
The per curiam opinion further attempts to avoid the Konigsberg precedent by construing it holds only that there was inadequate notice to the applicant that refusal to answer would warrant rejection. The opinion then asserts that since such a warning was given in the instant case the Konigsberg decision is distinguishable. This attempt at refinement of the decision is contrary to the facts. The applicant in the Konigsberg case was given the same notice as Anastaplo was given. He was informed that refusal to answer would have a bearing on the committee’s determination, and that some committee members did not agree that he had a constitutional right to refuse to answer. (Footnote p. 259.) Similarly, the committee herein warned Anastaplo at p. 37 of the record, that his “refusal to answer may be taken into account by the Committee in determining whether you have established your fitness to become a member of the bar.” In neither case was the applicant advised that refusal to answer would ipso facto warrant a denial of admission, irrespective of any and all other evidence. On the contrary, the actions of the committee in the instant case in conducting 5 more lengthy hearings, in encouraging the applicant to submit his writings and any other evidence, and in stating that it was “interested in your reasons for not answering,” are inconsistent with any warning that refusal to answer would automatically preclude Anastaplo’s admission to the bar.
Moreover, even if such a warning had been given, it would have been, according to the Konigsberg case, beyond the power of the committee. The court in that case noted that the committee has no authority or power by statute, decision or rule of court to apply a “brand new exclusionary rule,” or a “brand new sanction on analogy to the summary contempt cases,” whereby refusal to answer a question would mean rejection. The court stated at p. 260-261: “There is nothing in the California statutes, the California decisions or even in the Rules of the Bar which has been called to our attention, that suggests that failure to answer a Bar Examiner’s inquiry is ipso facto a basis for excluding an applicant from the Bar, irrespective of how overwhelming is his showing of good character or loyalty or how flimsy are the suspicions of the Bar Examiners.” Nor is there any such authority in Illinois for applying any such “brand new exclusionary rule.”
Equally untenable is the attempt to sidestep the Konigsberg case by bandying about words and arguing that this court is not drawing unfavorable character inferences from applicant’s refusal to answer the political affiliations questions, but that such refusal prevented inquiry into subjects which bear upon his character and resulted in his failure to establish good character. As stated in the minority report, this reasoning is “pure sophistry.” Any realistic appraisal of this record indicates that from the searching examination of applicant, from his letters and writings on the responsibilities of a citizen and lawyer to our government, from the writings of statesmen and scholars whose views he embraced, from the affidavits elicited by the committee, and from the committe’s own independent investigation, it should have known well George Anastaplo, his moral character and his views respecting our constitutional government. Moreover, through its power of subpoena, the committee could have supplemented that fund of knowledge if necessary.
Therefore, in my judgment the determinative principles of the Konigsberg case cannot be avoided by any of the techniques of construction advanced in the per curiam opinion. Nor is the law of that case in any way modified or affected by the Beilan and Lerner cases relied upon by the per curiam opinion. (Beilan v. Board of Education, 357 U.S. 399, 2 L. ed. 2d 1414; Lerner v. Casey, 357 U.S. 468, 2 L. ed. 2d 1423.) These cases both carefully distinguished the Konigsberg case. They involved public employees who were dismissed under the Pennsylvania School Code and the New York Security Risk Law, respectively, for refusing, on fifth amendment grounds, to answer questions about membership in the Communist Party.
For those cases to be determinative of the Anastaplo case, we must equate “refusal to answer” with failure to establish good moral character. This means that the remainder of the evidence in the record, including all of the other questions and affidavits of good moral character is immaterial. Under this interpretation, the committee should have concluded the hearing after the first unanswered question on religious affiliations at p. 18 of the record, or shortly thereafter at p. 34, when the first political affiliations questions were unanswered, for nothing said thereafter would have any significance.
How can this interpretation be squared with the committee’s statement at p. 37 of the record that it was interested in applicant’s reasons for not answering, or with the 6 sessions it held, or with the 400-page record it encouraged? How can such a course be followed in the light of the determinations in the Konigsberg case at p. 264 that in bar admission cases moral character must be determined from the entire record, and that refusal to answer on constitutional grounds is an insufficient basis for a finding of failure to establish good moral character.
The construction advanced by the per curiam opinion, moreover, would be inconsistent with the purpose and function of a character and fitness committee. That body is not an Un-American Activities Committee charged with investigating Communists, with power to require — indirectly —noncommunist oaths on pain of denial of admission to the bar. Nor it is conducting a contempt proceeding with the denial of the right to practice law imposed as punishment for refusal to answer questions which the Committee regards as “proper.” It is not inconceivable, furthermore, that refusal to answer might be more indicative of good character in some instances, than answering. We have only to recall the unconstitutional religious interrogation of applicant herein to appreciate that fact.
Furthermore, the per curiam opinion has apparently lost sight of the fact that the Lerner and Beilan cases did not involve bar admissions, but rather the duties of public employees to their employer — a category which has long been given special treatment in the law. (Garner v. Board of Public Works, 341 U.S. 716, 95 L. ed. 1317; Adler v. Board of Education, 242 U.S. 485, 96 L. ed. 517.) In fact, the Lerner and Beilan cases add very little to the law laid down in the Garner and Adler cases, which were decided long prior to the Konigsberg case, which did not even refer to those cases or regard them as authoritative in bar admissions interrogations.
In relying upon the Beilan and Lerner cases the per curiam opinion has deliberately overlooked the striking differences in the operative facts of those cases and the case at bar. The Beilan and Lerner cases involved evidence of “suspect activities,” and membership in the Communist Party, all of which is entirely lacking in the instant case. Moreover, refusal to answer the subversive affiliations questions in those cases was predicated upon the privilege against self-incrimination, whereas in the case at bar Anastaplo would refuse to answer even if the replies reflected favorably upon him. In fact, his refusal was not limited to questions about subversive groups, but extendedlo all political affiliations, including membership in the Republican and Democratic parties.
In my judgment these fundamental differences in the operative facts certainly affect the significance of the refusal to answer, and warrant treating such refusal differently in the Lerner and Beilan cases than in the case before us.
In reviewing the other authorities cited by the per curiam opinion, I note the conspicuous omission of any discussion of the leading bar admission case of Schware v. Board of Bar Examiners, 353 U.S. 232, 1 L. ed. 2d 796. In that case the United States Supreme Court in a unanimous decision held that unless the committee’s finding of failure to establish good moral character is substantiated by evidence, a denial of admission to the bar on that ground violates the due-process clauses of the Federal and State constitutions.
The court held that irrespective of whether the practice of law is labelled a “right” or a “privilege” (which the per curiam opinion calls it), an applicant cannot be excluded from practice in a manner, or for reasons that contravene the due-process clause of the fourteenth amendment. At p. 239, the court emphasized that any qualifications imposed by the State must have a rational connection with the applicant’s fitness or capacity to practice law. Not only must the State avoid arbitrary standards, but even in applying permissible standards, it cannot exclude an applicant when there is no basis for finding that he fails to meet these standards.
After a review of the relevant principles of law in bar admission proceedings, the court found that neither membership in the Communist Party during the year between 1932 and 1940, nor the use of aliases to secure jobs, nor arrests under the particular circumstances constituted adverse evidence of moral character. The court reasoned that even though the nature and purposes of the Communist Party of 1950, as viewed in the Douds case (American Communications Ass’n, C.I.O. v. Douds, 339 U.S. 382, 94 L. ed. 2d 925) may warrant classifying it differently from other political parties, that view did not constitute a “substitute for evidence” to show that the petitioner participated in any illegal activity or did anything morally reprehensible as a member of the party.
The court quoted with approval the concept that “Mere unorthodoxy (in the field of political and social ideas) does not as a matter of fair and logical inference negative good moral character.” It then stressed the importance of the character affidavits and the absence of derogatory testimony, and concluded that since there was no evidence to justify the bar examiners’ finding that petitioner had not shown “good moral character,” the action of the board, refusing to permit petitioner to take the bar examination, deprived him of due process of law.
If actual membership for 7 years in the Communist Party did not per se justify a finding of failure to establish good moral character in the opinion of the United States Supreme Court in the Schware case, then I fail to perceive how mere disagreement over constitutional interpretation can be deemed such morally reprehensible conduct as would support a finding of failure to establish good moral character, as the per curiam opinion has affirmed in the instant case.
Before concluding this dissenting opinion, I am constrained to note that it is hardly consistent with judicial objectivity for the per curiam opinion to have overlooked every item of positive evidence submitted in support of establishing applicant’s good moral character. Guidance on the meaning of the phrase “good moral character” is found in Justice Frankfurter’s concurring opinion in the Schware case where the learned Justice stated: “It is a fair characterization of the lawyer’s responsibility in our society that he stand ‘as a shield,’ to quote Devlin, J., in defense of right and to ward off wrong. From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility that have, through the centuries, been compendiously described as ‘moral character.’ ”
Anyone reading this record, whether or not he agrees with George Anastaplo’s interpretation of his constitutional rights, cannot come away without being impressed by his adherence to truth and what he regards as basic principles of good citizenship. His refusal to answer certain questions is not in fear of the truth, but rather in defense of what he believes to be the truth — that a citizen, particularly a lawyer, has a duty to defend constitutional principles, “even at the risk of incurring official displeasure.” His restrained and well mannered testimony and conduct at the hearing corroborate fully ffie glowing evaluations of his character and reputation in the affidavits submitted to the committee.
On the basis of this entire record, it is my opinion that there was substantial evidence of George Anastaplo’s good moral character, which was in no way marred by a single item of evidence from which the committee could reasonably conclude that there were doubts about applicant’s honesty, fairness and respect for the rights of others or for the laws of the nation. Under these circumstances, the committee’s action denying applicant admission to the Illinois bar on the basis of its finding that he failed to establish good moral character, constituted a denial of due process of law under the decisions of the United States Supreme Court, and should properly have been rejected by this court.