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In Re Anastaplo



PETITION and APPEAL from refusal of Committee on Character and Fitness to grant certificate.


Rehearing denied January 21, 1960.

The present proceeding is a sequel to In re Anastaplo, 3 Ill.2d 471. George Anastaplo passed the Illinois bar examination given in August of 1950. Thereafter, following extended hearings before the Committee on Character and Fitness for the First Appellate Court District, the committee, on June 6, 1951, advised Anastaplo that he had failed to prove such qualifications as to character and general fitness as, in the opinion of the committee, would justify his admission to the bar of Illinois.

Anastaplo filed in this court a "Petition and appeal from the refusal of the Committee on Character and Fitness * * * to sign a favorable certificate for admission to the practice of law for the applicant and Motion to the Supreme Court of Illinois to provide for the admission of the applicant to the practice of law in the state of Illinois." For the reason that Anastaplo charged that the committee abused its discretion and that certain of his constitutional rights were infringed upon, we found that circumstances existed which should cause the matter to be set down for argument and opinion. (In re Summers, 325 U.S. 561, 89 L.ed. 1795, 65 S.Ct. 1307.) The matter was taken upon the record of the hearings before the Committee on Character and Fitness, the report of the committee, Anastaplo's brief and oral argument, briefs of two amici curiae and the suggestions of a one-time member of the committee in his behalf.

The crux of the earlier controversy centered upon Anastaplo's refusal to answer inquiries as to whether he was a member of the Communist Party or of any subversive organizations in a list compiled by the United States Department of Justice. When initially interrogated as to whether he was a member of the Communist Party Anastaplo answered that the question was an inquiry into his political beliefs and an "illegitimate question." He made like responses to similar questions in other parts of the record. Based upon these refusals, the committee, upon the basis of its opinion that a member of the Communist Party, because of such membership, might not be able in good faith to take the oath of attorney to support the Federal and State constitutions, thereupon directed questions to Anastaplo to elicit his views in what the committee deemed were pertinent areas of inquiry. Questioning of Anastaplo brought out his opinion that a member of the Communist Party, otherwise qualified, should be admitted to the practice of law and that he could see nothing contradictory or incompatible between adherence to tenets of that party and the taking of the attorney's oath to support the constitutions. Anastaplo expressed his belief in the doctrine of revolution and the overthrow of government by force of arms, saying that he would embrace such doctrine if he could not agree with the existing government, or found it unsatisfactory, and felt that force of arms was the only means to attain the end desired. He also stated that such view would not be altered even though the existing government provided for peaceful and orderly means of change. In its report denying Anastaplo a certificate, the committee stated that the views and opinions expressed by Anastaplo on these matters were not the basis of its decision, but that such views increased the importance of his refusal to answer and made more necessary a complete answer upon the subject of membership in the Communist Party, so that the committee could better determine the ability of Anastaplo to take the oath of attorney in good conscience and his good citizenship.

In his appeal to this court, Anastaplo contended that the committee abused its discretion and exceeded its function by inquiring into what he described as his "political views," directly or indirectly. We rejected this contention and held that the committee's inquiry into Anastaplo's membership in the Communist Party was relevant to a determination of his good citizenship and his ability to take the oath of a lawyer in good conscience, and that his constitutional rights were not infringed upon. Accordingly, we concluded that "On the present record the petition must be denied." Anastaplo appealed to the United States Supreme Court, which treated the appeal as a petition for writ of certiorari, and denied the petition. (In re Anastaplo, 348 U.S. 946, 99 L.ed. 740.) The Supreme Court of the United States also denied Anastaplo's motion for admission to the bar of that court in 349 U.S. 903 (1955), 99 L.ed. 1240.

Upon the authority of Dennis v. United States, 341 U.S. 494, 95 L.ed. 1137, American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 94 L.ed. 925, and In re Summers, 325 U.S. 561, we held that inquiries to applicant by the committee concerning his membership in the Communist Party did not violate either the first or the fourteenth amendment to the Federal constitution.

On June 25, 1957, subsequent to the decisions of the United States Supreme Court in Konigsberg v. State Bar of California, 353 U.S. 252, 1 L.ed.2d 810, 77 S.Ct. 722, Schware v. Board of Bar Examiners, 353 U.S. 232, 1 L.ed.2d 796, and Yates v. United States, 354 U.S. 298, 1 L.ed.2d 1356, 77 S.Ct. 1064, Anastaplo filed with the Committee on Character and Fitness a supplementary petition for rehearing of his application for admission to the bar. On July 2, 1957, the committee denied the petition. Thereafter on September 17, 1957, we entered the following order:

"In 1951 the Committee on Character and Fitness for the First Appellate Court District denied the application of George Anastaplo for admission to the bar of Illinois. This Court affirmed the action of the Committee, (In re Anastaplo, 3 Ill.2d 471,) and the Supreme Court of the United States denied certiorari. (348 U.S. 946.)

"Subsequently the applicant filed with the Committee a petition for rehearing on the basis of certain decisions of the Supreme Court of the United States. The Committee denied this petition.

"The principal question presented by the petition for rehearing concerns the significance of the applicant's views as to the overthrow of government by force in the light of Konigsberg v. State Bar of California, 353 U.S. 252, and Yates v. United States, 1 L.ed.2d 1356, 77 S.Ct. 1064. Additional questions presented concern the applicant's activities since his original application was denied, and his present reputation.

"We are of the opinion that the Committee should have allowed the petition for rehearing and heard evidence on these matters, and the Committee is requested to do so, and to report the evidence and its conclusions."

In obedience to the directions of this court, the committee requested Anastaplo to file the questionnaire required by the committee of all applicants for admission to the bar. Anastaplo's answers, in large measure, supplemented the answers given to the questionnaire filed with the committee on October 26, 1950. Anastaplo also supplied attorney's affidavits and character affidavits from persons acquainted with him. In addition, the committee received communications from various individuals whose names were given as character references by Anastaplo and who furnished information concerning Anastaplo's moral character and general fitness to practice as an attorney.

The committee conducted five extended hearings, commencing February 28, 1958, and ending May 19, 1958. Anastaplo testified and argued at great length, as evidenced by approximately 420 pages of the record covering his oral testimony and argument. The record also contains law review articles, newspaper reprints, other exhibits, and letters from Anastaplo addressed to the committee. During the progress of the hearings, the committee repeatedly advised Anastaplo that he enjoyed the right to be represented by counsel and to call witnesses. He elected to submit his application solely upon his own testimony and argument.

During the interval between denial of his original application and the submission of his second application, Anastaplo had been employed the greater part of the time as an instructor and research assistant at the University of Chicago. The character affidavits and letters of reference supplied by Anastaplo disclose that he is well regarded by his academic associates, by professors who taught him in school and by lawyers who are personally acquainted with him. The committee says that it has not been supplied with any information by any third party which is derogatory to Anastaplo's character or general reputation, and that it has received no information from any outside source which would cast any doubt on Anastaplo's loyalty or which would tend to connect him in any manner with any subversive group. The committee further advises us that it has conducted no independent investigation into Anastaplo's character, reputation or activities. For the very practical reason that the committee has no personnel or other resources for any such investigation, the committee states that it has traditionally asserted the view that it cannot be expected to carry the burden of establishing, by independent investigation, whether an applicant possesses the requisite character and fitness for admission to the bar and that a duty devolves upon the applicant to establish that he possesses the necessary qualifications and that it is then the duty of the committee to test, by hearings and questioning of the applicant, the worth of the evidence which he proffers. We agree, and have held that the discretion exercised by the Committee on Character and Fitness will not ordinarily be reviewed. In re Frank, 293 Ill. 263.

The committee conducted an extensive inquiry into Anastaplo's belief in the right to overthrow the government by force and violence. His testimony in this regard does not require narration since a majority of the committee concluded that while the views expressed by Anastaplo, while strongly libertarian and expressed with an intensity and fervor not necessarily shared by all good citizens, are not inconsistent with those held by many patriotic Americans both at the present time and throughout the course of this country's history and do not in and of themselves reveal any adherence to subversive doctrines. Accordingly, the committee quite properly decided that although, in the light of the foregoing conclusion, there was no need to consider in this connection either Yates v. United States, 354 U.S. 298, or Konigsberg v. State Bar of California, 353 U.S. 252, the Konigsberg case necessarily required consideration, with respect to the committee's authority to ask Anastaplo questions concerning Communist or other subversive affiliations and activities.

The committee regarded Anastaplo's views bearing upon his attitude toward established authority and orderly governmental procedures as relevant to an inquiry into his character and fitness for admission to the bar. First, Anastaplo declined to deny that circumstances might exist under which he would resist by force Federal or State officers seeking to enforce judgments or decrees in proceedings against him personally which had become final after full review by the highest court having jurisdiction. Anastaplo testified: "I would not care to say there might not be instances where resistance to an officer of the law executing such a mandate might not be improper." He testified, further, that if admitted to practice and advising a client, he would not advise the client to resist by force or other similar means a final judgment or decree against the client, because, in his opinion, it was his duty to advise the client only "with respect to the legal system as it exists. In so far as I am a lawyer, I can tell him what his rights are under the accepted law * * * under the Canons of Ethics I would be derelict in my duty if I presume to do much more than that." Although disclaiming that he was arrogating to himself rights or privileges which he would deny to others as "citizens," he testified that "If, however, he [the client] were thereupon to approach me on some other basis, not as an attorney, there may be other advice I would be willing to give him." Anastaplo asserted that he saw no inconsistency between such an opinion and the taking of an oath to support the Federal and State constitutions "without any reservations whatsoever."

The foregoing views, according to the committee's report, raise a serious question whether the attitude expressed by Anastaplo toward final court determinations binding upon himself and toward attempts to enforce them conformably to the law is consistent with the oath required of attorneys in this State. An attorney is an officer of the courts. (In re Day, 181 Ill. 73.) In Cooper v. Aaron, 358 U.S. 1, 3 L.ed.2d 5, the United States Supreme Court said, at page 8: "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it."

The committee's report also suggests that Anastaplo's attitude with respect to advising others along the same subversive lines in his capacity as "citizen" in contradistinction to his capacity as "attorney" raises additional serious questions concerning his capacity to take the oath required of attorneys in this State. See: In re Anastaplo, 3 Ill.2d 471, at page 479.

The major issue presented to the committee arose from the applicant's continued refusal to answer questions regarding possible Communist or other subversive affiliations. In our first opinion in this case, we said in 3 Ill.2d 471, at page 478:

"Neither the committee nor this court, faced with the question of whether membership in the Communist Party is relevant to a determination of petitioner's good citizenship and his ability to take the oath of lawyer in good conscience, need be oblivious to the existence of that party and its established conspiratorial nature, nor to the view in which it is held by the people of this country. Aside from the fact that membership in an organization advocating the forceful overthrow of our government would give rise to questions concerning the sincerity of an applicant's oath of loyalty, it is proper to consider that the lawyer, as an officer of the court, holds a position of public trust, or at least of semipublic trust. * * * While technically not a governmental employee, a lawyer meets on common ground with one so employed, in that loyalty to the constitution is an inalienable condition to their service. In either case, Communist Party membership or communist activity is totally incompatible with such loyalty.

"It is our opinion, therefore, that a member of the Communist Party may, because of such membership, be unable truthfully and in good conscience to take the oath required as a condition for admission to practice, and we hold that it is relevant to inquire of an applicant as to his membership in that party. A negative answer to the question, if accepted as true, would end the inquiry on the point. If the truthfulness of a negative answer were doubted, further questions and information to test the veracity of the applicant would be proper. If an affirmative answer were received, further inquiry into the applicant's innocence or knowledge as to the subversive nature of the organization would be relevant. Under any hypothesis, therefore, questions as to membership in the Communist Party or known subversive `front' organizations were relevant to the inquiry into petitioner's fitness for admission to the bar. His refusal to answer has prevented the committee from inquiring fully into his general fitness and good citizenship and justifies their refusal to issue a certificate."

We reaffirm our adherence to the foregoing views.

In Orloff v. Willoughby, 345 U.S. 83 (1953), 97 L.ed. 842, the petitioner, who had been inducted under the Doctor's Draft Act, brought habeas corpus proceedings for his discharge from Army because he had not been assigned to the specialized duties nor given the commissioned rank to which he claimed to be entitled by the circumstances of his induction. The petitioner had refused to answer the question "Are you now or have you ever been a member of the Communist Party, U.S.A., or any Communist Organization?" in connection with his application for a commission. In affirming the denial of the writ, the Supreme Court (Justice Jackson) said at page 91: "Could this Court, whatever power it might have in the matter, rationally hold that the President must, or even ought to, issue the certificate to one who will not answer whether he is a member of the Communist Party? It is argued that Orloff is being punished for having claimed a privilege which the Constition guarantees. No one, at least no one on this Court which has repeatedly sustained assertion by Communists of the privilege against self-incrimination, questions or doubts Orloff's right to withhold facts about himself on this ground. No one believes he can be punished for doing so. But the question is whether he can at the same time take the position that to tell the truth about himself might incriminate him and that even so the President must appoint him to a post of honor and trust. We have no hesitation in answering that question "No."

In Lerner v. Casey, 357 U.S. 468 (1958), 2 L.ed.2d 1423, petitioner, a subway conductor in the New York City Transit System, was discharged by his employer under the New York Security Risk Law on the ground that his refusal, based upon the privilege against self incrimination guaranteed by the fifth amendment, to answer a question of his employer as to his membership in the Communist Party, showed that he was of doubtful trust and reliability. Petitioner sued in the New York State court for reinstatement, attacking his discharge on various grounds, including lack of due process. The New York supreme court dismissed the suit and the Appellate Division and Court of Appeals both affirmed. On certiorari, the United States Supreme Court also affirmed. Justice Harlan for the majority said, at pages 476-8:

"In other words, we read the court's opinion as meaning that a finding of doubtful trust and reliability could justifiably be based on appellant's lack of frankness, cf. Garner v. Board of Public Works, 341 U.S. 716; Beilan v. Board of Public Education, ante, p. 399, decided today, just as if he had refused to give any other information about himself which might be relevant to his employment. It was this lack of candor which provided the evidence of appellant's doubtful trust and reliability which under the New York statutory scheme constituted him a security risk. The Court of Appeals went on to reason that had appellant refused, without more, to answer the question, the finding of `doubtful trust and reliability' would have undoubtedly been permissible, and that the basis for such a finding, in appellant's refusal to answer, was not destroyed by the claim of the Fifth Amendment privilege because the Commissioner was not required to accept that claim as an adequate explanation of the refusal.

"Accepting, as we do, these premises of the state court's opinion, we find no constitutional block to its decision sustaining appellant's dismissal from employment * * *. Nor, as the Court of Appeals stressed, was the claim of possible self-incrimination made the basis for an inference that appellant was a Communist and therefore unreliable. Hence we are not faced here with the question whether party membership may rationally be inferred from a refusal to answer a question directed to present membership where the refusal rests on the belief that an answer might incriminate, cf. Adamson v. California, 332 U.S. 46, or with the question whether membership in the Communist Party which might be `innocent' can be relied upon as a ground for denial of state employment. Cf. Wieman v. Updegraff, supra; Konigsberg v. State Bar of California, 353 U.S. 252; Schware v. Board of Bar Examiners, 353 U.S. 232.

"We think it scarcely debatable that had there been no claim of Fifth Amendment privilege, New York would have been constitutionally entitled to conclude from appellant's refusal to answer what must be conceded to have been a question relevant to the purposes of the statute and his employment, cf. Garner v. Board of Public Works, supra, that he was of doubtful trust and reliability. Such a conclusion is not `so strained as not to have a reasonable relation to the circumstances of life as we know them.' Tot v. United States, 319 U.S. 463, 468. This Court pointed out in Garner that a government employee can be required upon pain of dismissal to respond to inquiry probing into matters relevant to his employment, and that present membership in the Communist Party is such a matter. See also Beilan v. Board of Public Education, supra. Certainly it is not a controlling constitutional distinction that New York, rather than impose on employees, as in Garner and Beilan, an absolute duty to respond to permissible inquiry upon threat of dismissal for refusal, has in these proceedings held that an employee lacking in candor to his governmental employer evidences doubt as to his trust and reliability. Finally, unlike the situation involved in Konigsberg v. State Bar of California, supra, there is here no problem of inadequate notice as to the consequences of refusal to answer, for appellant was specifically notified that continued refusal might lead to his dismissal."

In Beilan v. Board of Public Education, 357 U.S. 399, 2 L.ed.2d 1414, petitioner, a public school teacher, was discharged by the local school board for "incompetency" under the Pennsylvania School Code because of his refusal, continued after warning that failure to answer might lead to dismissal, to answer a question of his superintendent as to his membership in a Communist political association. On an administrative appeal, the superintendent sustained the local board, but the county court set aside the discharge. On the appeal by the board the Pennsylvania Supreme Court reversed and reinstated the discharge. On certiorari, the United States Supreme Court affirmed. It held that due process was not violated by petitioner's discharge on the ground of "incompetency" evidenced by petitioner's refusal to answer the request of the superintendent for information as to the teacher's loyalty and as to his activities in certain subversive organizations, such refusal being based upon the fifth amendment and other constitutional objections.

Justice Burton, who had voted with the majority in the Konigsberg case, said, at pages 404-6, 408-9: "The only question before us is whether the Federal Constitution prohibits petitioner's discharge for statutory `incompetency' based on his refusal to answer the Superintendent's questions.

"By engaging in teaching in the public schools, petitioner did not give up his right to freedom of belief, speech or association. He did, however, undertake obligations of frankness, candor and cooperation in answering inquiries made of him by his employing Board examining into his fitness to serve it as a public school teacher.

"The question asked of petitioner by his Superintendent was relevant to the issue of petitioner's fitness and suitability to serve as a teacher. * * * He made it clear that he would not answer any question of the same type as the one asked. Petitioner blocked from the beginning any inquiry into his Communist activities, however relevant to his present loyalty. The Board based its dismissal upon petitioner's refusal to answer any inquiry about his relevant activities — not upon those activities themselves. It took care to charge petitioner with incompetency, and not with disloyalty. It found him insubordinate and lacking in frankness and candor — it made no finding as to his loyalty.

"In the instant case, the Pennsylvania Supreme Court has held that `incompetency' includes petitioner's `deliberate and insubordinate refusal to answer the questions of his administrative superior in a vitally important matter pertaining to his fitness.' 386 Pa. at 91, 125 A.2d at 331. This interpretation is not inconsistent with the Federal Constitution.

"Our recent decisions in Slochower v. Board of Higher Education, 350 U.S. 551, and Konigsberg v. State Bar of California, 353 U.S. 252, are distinguishable. * * *

"In the Konigsberg case, supra, at 259-261, this Court stressed the fact that the action of the State was not based on the mere refusal to answer relevant questions — rather, it was based on inferences impermissibly drawn from the refusal. In the instant case, no inferences at all were drawn from petitioner's refusal to answer. The Pennsylvania Supreme Court merely equated refusal to answer the employing Board's relevant questions with statutory `incompetency.'"

In the instant case, as in Lerner and Beilan, and unlike the situation in Konigsberg, no problem exists as to inadequate notice of the consequences of a refusal to answer; the applicant was specifically notified both by the Illinois Supreme Court in its opinion in 3 Ill.2d 471, and by the committee on rehearing that his continued refusal to answer might lead to the denial of his application.

In Barenblatt v. United States, 3 L.ed.2d 1115, 79 S.Ct. 1081 (1959), the petitioner was convicted of contempt by the district court for refusal to answer certain questions before a subcommittee of the Committee on UnAmerican Activities of the House of Representatives. Two of the questions were "Are you now a member of the Communist Party?" and "Have you ever been a member of the Communist Party?" The Court of Appeals affirmed but the Supreme Court vacated the judgment and remanded the case to the Court of Appeals for reconsideration in light of Watkins v. United States, 354 U.S. 178 ...

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