Baird v. State Bar of Arizona/Dissent Blackmun

by Harry Blackmun

United States Supreme Court

401 U.S. 1

Baird  v.  State Bar of Arizona

 Argued: Oct. 14, 1970. --- Decided: Feb 23, 1971

Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, Mr. Justice HARLAN, and Mr. Justice WHITE join, dissenting.

This, for me, is not at all a case involving mere personal beliefs on the part of Sara Baird.

I have necessarily assumed, and I trust not erroneously, that Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105, and In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135, both decided on April 24, 1961, have remained good law despite the Court's then close division (Justice Harlan and Justices Frankfurter, Clark, Whittaker, and Stewart in the majority; Justice Black and Chief Justice Warren, and Justices Douglas and Brennan, dissenting). Neither case has ever been expressly overruled. Neither is now expressly overruled. In each of the cases the Court decided, at the very least, as Mr. Justice STEWART puts it in his separate concurrence here, that 'under some circumstances simple inquiry into present or past Communist Party membership of an applicant for admission to the Bar is not as such unconstitutional.'

I think the Court really decided more than that. I say this because (a) in Konigsberg the applicant had 'reiterated unequivocally his disbelief in violent overthrow, and stated that he had never knowingly been a member of any organization which advocated such action,' 366 U.S. at 39, 81 S.Ct. at 1000; (b) the Court stated that it thought it 'clear that the Fourteenth Amendment's protection against arbitrary state action does not forbid a State from denying admission to a bar applicant so long as he refuses to provide unprivileged answers to questions having a substantial relevance to his qualifications,' 366 U.S. at 44, 81 S.Ct., at 1003; that:

'We likewise regard as untenable petitioner's contentions that the questions as to Communist Party membership were made irrelevant either by the fact that bare, innocent membership is not a ground of disqualification or by petitioner's willingness to answer such ultimate questions as whether he himself believed in violent overthrow or knowingly belonged to an organization advocating violent overthrow,' 366 U.S., at 46, 81 S.Ct., at 1004;

and that:

'It would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country's legal and political institutions. * * *

'(W)e regard the State's interest in having lawyers who are devoted to the law in its broadest sense, including not only its substantive provisions, but also its procedures for orderly change, as clearly sufficient to outweigh the minimal effect upon free association occasioned by compulsory disclosure in the circumstances here presented,' 366 U.S., at 51-52, 81 S.Ct. at 1007,

and (c) in Anastaplo it was observed:

'We have also held in Konigsberg that the State's interest in enforcing such a rule as applied to refusals to answer questions about membership in the Communist Party outweighs any deterrent effect upon freedom of speech and association, and hence that such state action does not offend the Fourteenth Amendment.' (Footnote omitted.) 366 U.S., at 89, 81 S.Ct. at 983.

Petitioner Baird, however, attacked the integrity of these cases before the Arizona court and again attacks their integrity here and claims that, although perhaps distinguishable, the cases 'warrant * * * delimiting, and perhaps even overruling in light of the trend since 1961.' In my view, Mrs. Baird has now had striking success in her overruling endeavor despite the seeming recognition of the two cases in the opinion of the plurality for reversal (hereafter plurality) and the separate concurrence's definite bow in their direction.

The present case comes here, after argument for the second time, in a stark and clear posture. Mrs. Baird, applicant for admission to the Bar of the State of Arizona, possessor of an academic degree from Colorado College, and possessor of a degree in law from Stanford University, refuses to answer, other than to say 'Not Applicable,' the 27th inquiry of a questionnaire which the Arizona Supreme Court, by rule, has made a part of the application for membership in the State Bar. ^[1] That question reads:

'Are you now or have you ever been a member of the Communist Party or any organization that advocates overthrow of the United States Government by force or violence?'

The applicant bases this refusal (a) on the fact that in her answer to a preceding inquiry, the 25th, she listed the organizations of which she had been a member since age 16, and (b) on the asserted legal propositions that to compel her to answer is to deny her First Amendment rights of freedom of belief and freedom of association, her Fifth Amendment right not to incriminate herself, and her Fourteenth Amendment right to due process.

In my view, applicant Baird vastly overstates her case. On this record, I would affirm the judgment of the Supreme Court of Arizona in denying Mrs. Baird's petition for admission to practice law in the State's courts.

There are several factors that prompt my conclusion:

1. Mrs. Baird is an intelligent and knowledgeable person. She holds a college degree and a graduate degree, and, as is assumed here, she has demonstrated in the Bar examination an acceptable knowledge and mastery of the law. There is no claim of vagueness or lack of awareness on her part of precisely what Question 27 meant or of what it was intended to probe. The applicant obviously knew the scope of the question and its concern with the Party and with forceful and violent overthrow of the Government.

2. Mrs. Baird's use of the 'Not Applicable' response to Question 27 is not fully understandable. Of course, she may have so phrased that answer hurriedly in the passing thought that, with her listing of organizations in response to Question 25, buttressed by the statement, 'This list includes all organizations that I can recall at this time,' and with those organizations on the list obviously not within the contemplation of Question 27, the latter question was, indeed, 'not applicable'. After all, she did employ the same 'not applicable' answer on the form in no less than 16 other places; most of these, because of their conditional context, could well have been left blank and would have been expected to be left blank, despite the general instruction that all questions were to be answered.

Nevertheless she did respond to the inquiry in that manner and, as her brief states, she now has 'declined to answer' the question. This, then, leaves this litigation in the posture where the response to Question 27 was not inadvertent and was not the product of any misunderstanding or mistake, where an answer is now flatly refused, and where the applicant, perhaps somewhat defiantly, is content to have the record remain as it is and to have her case won or lost on that record. This is reminiscent of the obstructionist tactics condemned in Konigsberg and Anastaplo.

3. For Mrs. Baird to say that because she had answered Question 25, and had listed her organization memberships since age 16 she need not respond to Question 27 is no answer at all. ^[2] To answer the one question fully and to refuse to respond to the other embraces an obvious inconsistency of position, for the two questions are related. Furthermore, the questions are not duplicative. By her refusal to answer Question 27, she would place on the Arizona Committee on Examinations and Admissions ^[3] and on the Supreme Court of Arizona the burden of determining which of the organizations she listed, if any, was an arm of the Communist Party or advocated forceful or violent overthrow of the Government. That, however, is not the task of the Committee or of the Arizona Supreme Court. It is Sara Baird's task. It is a truism, I think, that the Communist endeavor works beneath the surface as well as in the open and that high-sounding names have been the front and the verbal shield for something very different from what the name imports.

4. No one is in a better position to know the aim and purpose and advocacy of an organization than a member. Certainly the Committee and the Arizona Supreme Court, which have other things to do, are not equipped for the task of checking out the identity of every named organization, especially one which might follow the standard of the less said and known, the better. And Mrs. Baird would place this burden on the Committee by submitting partial answers. She gives the appearance of playing a game. The importance of the subject deserves better than that.

5. It has been said that the burden is on the applicant. Application of Courtney, 83 Ariz. 231, 233, 319 P.2d 991, 993, (1957). But a most minimal burden it is. Had she answered 'None' to Question 27, that would have been the end of the matter in the absence of obvious prevarication. If she were in doubt, the answer 'None to my knowledge' would have accomplished the same result. She chose neither answer. She chose, instead, to remain silent and less than candid.

6. The plurality opinion, I feel, fails to place the issue in exact focus. This is not a situation where, as that opinion states, and even would do so in a perjury context, 'In effect this young lady was asked by the State to make a guess as to whether any organization to which she ever belonged 'advocates overthrow of the United States Government by force or violence." It falls far short of guesswork. Mrs. Baird either knew the answer or she did not know it. If she knew, she coupled her knowledge with an attempt to conceal. If she did not know, she had only to state her lack of knowledge. This was no 'guess' and, absent the intent to deceive, it certainly was no guess fraught with the risks of perjury.

7. Although Question 27, concededly, would have been better phrased had it gone on to inquire as to the applicant's own knowing participation in, and promotion of, illegal goals, a realistic reading of the question discloses that it is directed not at mere belief but at advocacy and at the call to violent action and force in pursuit of that advocacy. Contrary to the plurality opinion's conclusion and to that of the separate concurrence, I find nothing in this record that indicates that Mrs. Baird automatically would have been denied admission to the Bar had she answered Question 27 in the affirmative. The record, and the Committee's brief here, ^[4] disclose exactly the opposite. In its Memorandum, filed with the Arizona court in support of its response to the order to show cause, the Committee stated that no judgment as to recommendation or nonrecommendation for admission had been made; that an affirmative answer to Question 27 would lead to further inquiry as to Mrs. Baird's expectation actively to support the objective of violent overthrow; and that, if her membership is of a nominal character and she does not participate in the advocacy views, there would be no legal basis for refusing a recommendation for admission. ^[5] The material quoted in the plurality opinion's footnote 8 is from the body of the Memorandum; my reading of that material, however, indicates only that further inquiry is then in order. I do not share the opinion's interpretation of that material as being directed to mere belief. The key words are whether 'violent overthrow * * * is something to be sought after.' That is an inquiry into willingness to participate in violence.

8. There is talk, of course, in the briefs here about whether admission to the Bar and receiving authority to practice law is a 'right' or a 'privilege.' I am old enough and old-fashioned enough always to have regarded it more as a privilege than as a right. I at least thought that was the tradition. A century ago Mr. Justice Field referred to the practice of law by a qualified person as a right and not as a matter of the State's grace or favor. Ex parte Garland, 4 Wall. 333, 379, 18 L.Ed. 366 (1867). The Arizona court has spoken in similar terms. Application of Klahr, 102 Ariz. 529, 531, 433 P.2d 977, 979 (1967). It could oppositely be stated, with just as much accuracy, as the Bar in its brief here asserts, ^[6] that 'one qualified by character, integrity and learning has the right to practice law.' Indeed, this is precisely the way the Arizona court has phrased it: '(T)he practice of law is not a privilege but a right, conditioned solely on the requirement that a person have the necessary mental, physical and moral qualifications.' Application of Klahr, 102 Ariz., at 531, 433 P.2d, at 979. See also Application of Levine, 97 Ariz. 88, 90-91, 397 P.2d 205, 206-207 (1964), and Application of Burke, 87 Ariz. 336, 339, 351 P.2d 169, 172 (1960).

The characterization of Bar admission as a right or as a privilege may be little more than an exercise in semantics. It seems to me that, whichever it may be, the State, in granting the authority to practice law, with what surely is the true privilege, not the right, to be entrusted with a client's confidences, aspirations, freedom, life itself, property, and the very means of livelihood, demands something more of the applicant than a formal certificate of completion of a course of legal study and the ability acceptably to answer a series of questions on a Bar examination. It presumably demands what fundamentally is character. And it is character that a State holds out to the public when it authorizes an applicant to practice law.

9. Judges and Bar Examiners, of course, should hesitate to judge too strictly those seeking entrance to the profession. Certainly the impatience and far-ranging attitudes of youthful years are not, in themselves, disqualifying. That is part of the maturing process, especially for future lawyers who must study, examine, select, and develop their philosophies of life and of their profession. Mr. Justice Frankfurter expressed it well:

'The bar has not enjoyed prerogatives; it has been entrusted with anxious responsibilities * * *. 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, throughout the centuries, been compendiously described as 'moral character.' 'History overwhelmingly establishes that many youths like the petitioner were drawn by the mirage of communism during the depression era, only to have their eyes later opened to reality. Such experiences no doubt may disclose a woolly mind or naive notions regarding the problems of society. But facts of history that we would be arbitrary in rejecting bar the presumption, let alone an irrebuttable presumption, that response to foolish, baseless hopes regarding the betterment of society made those who had entertained them but who later undoubtedly came to their senses and their sense of responsibility 'questionable characters." Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 251, 77 S.Ct. 752, 760-762, 1 L.Ed.2d 796 (1957) (concurring opinion).

10. An attorney, we sometimes tend to forget, is an officer of the court. Ex parte Garland, 4 Wall., at 378, 18 L.Ed. 366. Perhaps we read too much into that phrase. But there is a distinct element of fact and of history in it. We have seen, of late, an overabundance of courtroom spectacle brought about by attorneys frequently those who, being unlicensed in the particular State, are nevertheless permitted, by the court's indulgence to appear for clients in a given case-who give indications of ignoring their responsibility to the courts and to the judicial process. Question 27 bears upon this facet of an applicant's character.

11. The plurality opinion acknowledges that Arizona has a legitimate interest in determining whether the applicant has the 'qualities of character' requisite for the practice of law. But the opinion then goes on to prescribe when, in its judgment, the applicant has given a sufficient amount of information to the committee. I doubt if this Court is the proper tribunal to judge the sufficiency of material supplied for legal practice in Arizona. Of course there is a constitutional limit, but that limit is marked by the relevant, by the excesses of unreasonableness and of harassment, and by the otherwise constitutionally forbidden. It should not be marked at an arbitrary point where the applicant, for reasons of convenience or assumed self-protection or contrariness, decides that enough is enough.

12. Finally, the State has a measure of a right to protect itself. Its area of possible vulnerability is nowhere greater than in its courts and in its judicial process. Courtroom events disclosed in recent litigation vividly demonstrate this. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). Assurance that applicant Baird at least professes to refrain from forceful and violent overthrow of the Government of which, upon admission, she will become a true and working part, and under which, for better or for worse, she has lived and, judging by her excellent education, has prospered and enjoyed some benefits, is a subject of legitimate inquiry.

As stated above, on this record I would affirm the judgment of the Supreme Court of Arizona.

Notes

1. See 102 Ariz. XXIV, XXIX, and XXXVII, for the pertinent provisions of Rule 28(c) in effect at the time Mrs. Baird submitted her application. The rule was amended, effective August 1, 1970, in ways not relevant here. See 106 Ariz. XXXI.
2. The majority, of course, obviously would hold that Question 25 also was impermissible. In re Stolar, 401 U.S. 23, 91 S.Ct. 713. Mrs. Baird, however, appears to have had no hesitancy in answering that inquiry.
3. See Arizona Supreme Court Rule 28(c).
4. 'The Committee would again emphasize that it has formed no judgment as to whether or not Sara Baird should or should not be recommended for admission to the Bar of this State to this Court.
5. The Memorandum states as its conclusion:
6. Respondent's Brief 15.