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[Cite as Konigsberg v. State Bar, 366 U.S. 36, 49 n.10 (1961). NOTE: This decision concerns an applicant to the California Bar who refused to answer questions about Communist affiliations. The Court ruled against him. Justice Black's dissent argued for absolute first amendment rights. Justice Harlan's majority opinion argued that all rights are subject to "balancing". Pointing to libel laws as laws not infringing the First Amendment, he likewise referred to to the Supreme Court's ruling in United States v. Miller as an example of a legitimate restriction of an "unqualified right." (P. 49 n.10).]



No. 28. Argued December 14, 1960.--Decided April 24, 1961.

Under California law, the State Supreme Court may admit to the practice of law any applicant whose qualifications have been certified to it by the California Committee of Bar Examiners. In hearings by that Committee on his application for admission to the Bar, petitioner refused to answer any questions pertaining to his membership in the Communist Party, not on the ground of possible self-incrimination, but on the ground that such inquiries were beyond the purview of the Committee's authority and infringed rights of free thought, association and expression assured him under the State and Federal Constitutions. The Committee declined to certify him as qualified for admission to the Bar on the ground that his refusals to answer had obstructed a full investigation into his qualifications. The State Supreme Court denied him admission to practice. Held: Denial of petitioner's application for admission to the Bar on this ground did not violate his rights under the Fourteenth Amendment. Pp. 37-56.

(a) The State's refusal to admit petitioner to practice on the ground that his refusal to answer the Committee's questions had thwarted a full investigation into his qualifications was not inconsistent with this Court's decision in Konigsberg v. State Bar, 353 U.S. 252. Pp. 40-44.

(b) 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 answer questions having a substantial relevance to his qualifications; and California's application of such a rule in this instance cannot be said to have been arbitrary or discriminatory. Pp. 44-49.

(c) Petitioner was not privileged to refuse to answer questions concerning membership in the Communist Party on the ground that they impinged upon rights of free speech and association protected by the Fourteenth Amendment. Speiser v. Randall, 357 U.S. 513, distinguished. Pp. 49-56.

52 Cal. 2d 769, 344 P.2d 777, affirmed.(p.37)

Edward Mosk argued the cause for petitioner. With him on the brief was Sam Rosenwein.

Frank B. Belcher argued the cause for respondents. With him on the brief was Ralph E. Lewis.

Briefs of amici curiae, urging reversal, were filed by David Scribner, Leonard B. Boudin, Ben Margolis, William B. Murrish and Charles Stewart for the National Lawyers Guild; A. L. Wirin, Fred Okrand and Hugh R. Manes for the American Civil Liberties Union of Southern California; and Robert L. Brock, Pauline Epstein, Robert W. Kenny, Hugh R. Manes, Ben Margolis, Daniel G. Marshall, William B. Murrish, John McTernan, Maynard Omerberg, Alexander Schullman and David Sokol on behalf of themselves and certain other members of the California Bar.

Mr. Justice Harlan delivered the opinion of the Court.

This case, involving California's second rejection of petitioner's application for admission to the state bar, is a sequel to Konigsberg v. State Bar, 353 U.S. 252, in which this Court reversed the State's initial refusal of his application.

Under California law the State Supreme Court may admit to the practice of law any applicant whose qualifications have been certified to it by the California Committee of Bar Examiners. Cal. Bus. & Prof. Code 6064. To qualify for certification an applicant must, among other things, be of "good moral character," id., 6060 (c), and no person may be certified "who advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means ...." Id., 6064.1. The Committee is empowered and required to ascertain the qualifications of all candidates. Id., 6046. Under rules prescribed by the Board of Governors of the State Bar, an applicant before (p.38)the Committee has "the burden of proving that he is possessed of good moral character, of removing any and all reasonable suspicion of moral unfitness, and that he is entitled to the high regard and confidence of the public." Id., Div. 3, c. 4, Rule X, 101. Any applicant denied certification may have the Committee's action reviewed by the State Supreme Court. Id., 6066.

In 1953 petitioner, having successfully passed the California bar examinations, applied for certification for bar membership. The Committee, after interrogating Konigsberg and receiving considerable evidence as to his qualifications, declined to certify him on the ground that he had failed to meet the burden of proving his eligibility under the two statutory requirements relating to good moral character and nonadvocacy of violent overthrow. That determination centered largely around Konigsberg's repeated refusals to answer Committee questions as to his present or past membership in the Communist Party.[38.1] The California Supreme Court denied review without opinion. See 52 Cal.2d 769, 770, 344 P.2d 777, 778.

On certiorari this Court, after reviewing the record, held the state determination to have been without rational support in the evidence and therefore offensive to the Due Process Clause of the Fourteenth Amendment. Konigsberg v. State Bar, supra. At the same time the Court declined to decide whether Konigsberg's refusals to answer could constitutionally afford "an independent ground for exclusion from the Bar," considering that such an issue was not before it. Id., 259-262. The case was remanded (p.39)to the State Supreme Court "for further proceedings not inconsistent with this opinion." Id., 274.

On remand petitioner moved the California Supreme Court for immediate admission to the bar. The court vacated its previous order denying review and referred the matter to the Bar Committee for further consideration. At the ensuing Committee hearings Konigsberg introduced further evidence as to his good moral character (none of which was rebutted), reiterated unequivocally his disbelief in violent overthrow, and stated that he had never knowingly been a member of any organization which advocated such action. He persisted, however, in his refusals to answer any questions relating to his membership in the Communist Party. The Committee again declined to certify him, this time on the ground that his refusals to answer had obstructed a full investigation into his qualifications.[39.2] The California Supreme Court, by a divided vote, refused review, and also denied Konigsberg's motion for direct admission to practice.[39.3] 52 Cal.2d 769, (p.40)344 P.2d 777. We again brought the case here. 362 U.S. 910.

Petitioner's contentions in this Court in support of reversal of the California Supreme Court's order are reducible to three propositions: (1) the State's action was inconsistent with this Court's decision in the earlier Konigsberg case; (2) assuming the Committee's inquiries into Konigsberg's possible Communist Party membership were permissible, it was unconstitutionally arbitrary for the State to deny him admission because of his refusals to answer; and (3) in any event, Konigsberg was constitutionally justified in refusing to answer these questions.


Consideration of petitioner's contentions as to the effect of this Court's decision in the former Konigsberg case requires that there be kept clearly in mind what is entailed in California's rule, comparable to that in many States, that an applicant for admission to the bar bears the burden of proof of "good moral character"[40.4]--a (p.41)requirement whose validity is not, nor could well be, drawn in question here.[41.5]

Under such a rule an applicant must initially furnish enough evidence of good character to make a prima facie case. The examining Committee then has the opportunity to rebut that showing with evidence of bad character. Such evidence may result from the Committee's own independent investigation, from an applicant's responses (p.42)to questions on his application form, or from Committee interrogation of the applicant himself. This interrogation may well be of decisive importance for, as all familiar with bar admission proceedings know, exclusion of unworthy candidates frequently depends upon the thoroughness of the Committee's questioning, revealing as it may infirmities in an otherwise satisfactory showing on his part. This is especially so where a bar committee, as is not infrequently the case, has no means of conducting an independent investigation of its own into an applicant's qualifications. If at the conclusion of the proceedings the evidence of good character and that of bad character are found in even balance, the State may refuse admission to the applicant, just as in an ordinary suit a plaintiff may fail in his case because he has not met his burden of proof.

In the first Konigsberg case this Court was concerned solely with the question whether the balance between the favorable and unfavorable evidence as to Konigsberg's qualifications had been struck in accordance with the requirements of due process. It was there held, first, that Konigsberg had made out a prima facie case of good character and of nonadvocacy of violent overthrow, and, second, that the other evidence in the record could not, even with the aid of all reasonable inferences flowing therefrom, cast such doubts upon petitioner's prima facie case as to justify any finding other than that these two California qualification requirements had been satisfied.[42.6] In assessing the significance of Konigsberg's refusal to answer questions as to Communist Party membership, the Court dealt only with the fact that this refusal could not provide any reasonable indication of a character not meeting (p.43)these two standards for admission. The Court did not consider, but reserved for later decision, all questions as to the permissibility of the State treating Konigsberg's refusal to answer as a ground for exclusion, not because it was evidence from which substantive conclusions might be drawn, but because the refusal had thwarted a full investigation into his qualifications. See 353 U.S., at 259-262. The State now asserts that ground for exclusion, an issue that is not foreclosed by anything in this Court's earlier opinion which decided a quite different question.

It is equally clear that the State's ordering of the rehearing which led to petitioner's exclusion manifested no disrespect of the effect of the mandate in that case, which expressly left the matter open for further state proceedings "not inconsistent with" the Court's opinion. There is no basis for any suggestion that the State in so proceeding has adopted unusual or discriminatory procedures to avoid the normal consequences of this Court's earlier determination. In its earlier proceeding, the California Bar Committee may have found further investigation and questioning of petitioner unnecessary when, in its view, the applicant's prima facie case of qualifications had been sufficiently rebutted by evidence already in the record. While in its former opinion this Court held that the State could not constitutionally so conclude, it did not undertake to preclude the state agency from asking any questions or from conducting any investigation that it might have thought necessary had it known that the basis of its then decision would be overturned. In recalling Konigsberg for further testimony, the Committee did only what this Court has consistently held that federal administrative tribunals may do on remand after a reviewing court has set aside agency orders as unsupported by requisite findings of fact. Federal Communications (p.44)Comm'n v. Pottsville Broadcasting Co., 309 U.S. 134; Fly v. Heitmeyer, 309 U.S. 146.

In the absence of the slightest indication of any purpose on the part of the State to evade the Court's prior decision, principles of finality protecting the parties to this state litigation are, within broad limits of fundamental fairness, solely the concern of California law. Such limits are broad even in a criminal case, see Bryan v. United States, 338 U.S. 552; Hoag v. New Jersey, 356 U.S. 464; cf. Palko v. Connecticut, 302 U.S. 319, 328. In this instance they certainly have not been transgressed by the State's merely taking further action in this essentially administrative type of proceeding.[44.7]


We think 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. An investigation of this character, like a civil suit, requires procedural as well as substantive rules. It is surely not doubtful that a State could validly adopt an administrative rule analogous to Rule 37 (b) of the Federal Rules of Civil Procedure which provides that that refusal, after due warning, to answer relevant questions may result in "the matters regarding which the questions were asked" being (p.45)considered for the purposes of the proceeding to be answered in a way unfavorable to the refusing party, or even that such refusal may result in "dismissing the action or proceeding" of the party asking affirmative relief.

The state procedural rule involved here is a less broad one, for all that California has in effect said is that in cases where, on matters material to an applicant's qualifications, there are gaps in the evidence presented by him which the agency charged with certification considers should be filled in the appropriate exercise of its responsibilities, an applicant will not be admitted to practice unless and until he cooperates with the agency's efforts to fill those gaps. The fact that this rule finds its source in the supervisory powers of the California Supreme Court over admissions to the bar, rather than in legislation, is not constitutionally significant. Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362. Nor in the absence of a showing of arbitrary or discriminatory application in a particular case, is it a matter of federal concern whether such a rule requires the rejection of all applicants refusing to answer material questions, or only in instances where the examining committee deems that a refusal has materially obstructed its investigation. Compare Beilan v. Board of Education, 357 U.S. 399, with Nelson v. County of Los Angeles, 362 U.S. 1.

In the context of the entire record of these proceedings,[45.8] the application of the California rule in this instance cannot be said to be arbitrary or discriminatory. In the first Konigsberg case this Court held that neither the somewhat weak but uncontradicted testimony, that petitioner had been a Communist Party member in 1941, nor his refusal to answer questions relating to Party membership, could rationally support any substantive adverse (p.46)inferences as to petitioner's character qualifications, 353 U.S., at 266-274. That was not to say, however, that these factors, singly or together, could not be regarded as leaving the investigatory record in sufficient uncertainty as constitutionally to permit application of the procedural rule which the State has now invoked, provided that Konigsberg had been first given due warning of the consequences of his continuing refusal to respond to the Committee's questions. Cf. 353 U.S., at 261.

It is no answer to say that petitioner has made out a prima facie case of qualifications, for this is precisely the posture of a proceeding in which the Committee's right to examine and cross-examine becomes significant. Assuming, as we do for the moment, that there is no privilege here to refuse to answer, petitioner could no more insist that his prima facie case makes improper further questioning of him than he could insist that such circumstance made improper the introduction of other forms of rebutting evidence.

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. The Committee Chairman's answer to the former contention was entirely correct:

"If you answered the question, for example, that you had been a member of the Communist Party during some period since 1951 or that you were presently a member of the Communist Party, the Committee would then be in a position to ask you what acts you engaged in to carry out the functions and purposes of that party, what the aims and purposes of (p.47)the party were, to your knowledge, and questions of that type. You see by failing to answer the initial question there certainly is no basis and no opportunity for us to investigate with respect to the other matters to which the initial question might very well be considered preliminary."

And the explanation given to petitioner's counsel by another Committee member as to why Konigsberg's testimony about ultimate facts was not dispositive was also sound:

"Mr. Mosk, you realize that if Mr. Konigsberg had answered the question that he refused to answer, an entirely new area of investigation might be opened up, and this Committee might be able to ascertain from Mr. Konigsberg that perhaps he is now and for many years past has been an active member of the Communist Party, and from finding out who his associates were in that enterprise we might discover that he does advocate the overthrow of this government by force and violence. I am not saying that he would do that, but it is a possibility, and we don't have to take any witness' testimony as precluding us from trying to discover if he is telling the truth. That is the point."

Petitioner's further miscellaneous contentions that the State's exclusion of him was capricious are all also insubstantial.[47.9](p.48)

There remains the question as to whether Konigsberg was adequately warned of the consequences of his refusal to answer. At the outset of the renewed hearings the Chairman of the Committee stated:

"As a result of our two-fold purpose [to investigate and reach determinations], particularly our function of investigation, we believe it will be necessary for you, Mr. Konigsberg, to answer our material questions or our investigation will be obstructed. We would not then as a result be able to certify you for admission."

After petitioner had refused to answer questions on Communist Party membership, the Chairman asked:

"Mr. Konigsberg, I think you will recall that I initially advised you a failure to answer our material questions would obstruct our investigation and result in our failure to certify you. With this in mind do you wish to answer any of the questions which you heretofore up to now have refused to answer?"

At the conclusion of the proceeding another Committee member stated:

"I would like to make this statement so that there will be no misunderstanding on the part of any court that may review this record in the future, that I feel that as a member of the Committee that the failure [paragraph continues next page]

[Currently at pages 36-48 (Majority opinion).
Proceed to page 49 (Majority opinion, cont.).
Proceed to pages 50-77 (Majority opinion, cont.).
Proceed to pages 56-81 (Black, dissent; Brennan, dissent).]

[38.1] Konigsberg rested his refusals, not on any claim of privilege against self-incrimination, but on the ground that such inquiries were beyond the purview of the Committee's authority, and infringed rights of free thought, association, and expression assured him under the State and Federal Constitutions. He affirmatively asserted, however, his disbelief in violent overthrow of government.

[39.2] The Committee made the following findings relevant to the issues now before us:

"(1) That the questions put to the applicant by the Committee concerning past or present membership in or affiliation with the Communist Party are material to a proper and complete investigation of his qualifications for admission to practice law in the State of California.

"(2) That the refusal of applicant to answer said questions has obstructed a proper and complete investigation of applicant's qualifications for admission to practice law in the State of California."

[39.3] The essence of the state court's decision appears in the following extracts from its opinion:

"... The committee action now before us contains no findings or conclusion that petitioner had failed to establish either his good moral character or his abstention from advocacy of overthrow of the government.

"Here it is the refusal to answer material questions which is the basis for denial of certification....

"... [T]o admit applicants who refuse to answer the committee's questions upon these subjects would nullify the concededly valid legislative direction to the committee. Such a rule would effectively stifle committee inquiry upon issues legislatively declared to be relevant to that issue." Id., at 772, 774, 344 P.2d, at 779, 780.

Justice Traynor dissented on the ground that the California Supreme Court, not being required by statute to exclude bar applicants on the sole ground of their refusal to answer questions concerning possible advocacy of the overthrow of government, should not adopt such an exclusionary rule, at least where the Committee of Bar Examiners has not come forward with some evidence of advocacy. He declined to reach constitutional issues. Justice Peters dissented on federal constitutional grounds and in the belief that this Court's decision in the first Konigsberg case required immediate admission of the applicant. Chief Justice Gibson did not participate in the decision.

[40.4] All of the 50 States, as well as Puerto Rico and the District of Columbia, prescribe qualifications of moral character as preconditions for admission to the practice of law. See West Publishing Co., Rules for Admission to the Bar (35th ed. 1957); Survey of the Legal Profession, Bar Examinations and Requirements for Admission to the Bar (1952); Jackson, Character Requirements for Admission to the Bar, 20 Fordham L. Rev. 305 (1951); Annot., 64 A. L. R. 2d 301 (1959).

The burden of demonstrating good moral character is regularly placed upon the bar applicant. Ex parte Montgomery, 249 Ala. 378, 31 So.2d 85; In re Stephenson, 243 Ala. 342, 10 So.2d 1; Application of Courtney, 83 Ariz. 231, 319 P.2d 991; Ark. Stat. Ann., 1947, 25-101, 25-103; Spears v. State Bar, 211 Cal. 183, 294 P. 697; O'Brien's Petition, 79 Conn. 46, 63 A. 777; In re Durant, 80 Conn. 140, 147, 67 A. 497; Del. Sup. Ct. Rule 31 (1) (A) (a), (2) (A) (a); Coleman v. Watts, 81 So.2d 650 (Fla.) (burden of proof on applicant; prima facie showing shifts burden of going forward to Examiners); Gordon v. Clinkscales, 215 Ga. 843, 114 S.E. 2d 15; In re Latimer, 11 Ill. 2d 327, 143 N.E. 2d 20 (semble); Rosencranz v. Tidrington, 193 Ind. 472, 141 N.E. 58; In re Meredith, 272 S.W. 2d 456 (Ky.); In re Meyerson, 190 Md. 671, 59 A. 2d 489 (semble); Matter of Keenan, 313 Mass. 186, 47 N.E. 2d 12; Application of Smith, 220 Minn. 197, 19 N.W. 2d 324 (semble); On Application for Attorney's License, 21 N.J.L. 345; Application of Cassidy, 268 App. Div. 282, 51 N.Y.S. 2d 202, aff'd, 296 N.Y. 926, 73 N. E. 2d 41; Application of Farmer, 191 N.C. 235, 131 S.E. 661; In re Weinstein, 150 Ore. 1, 42 P.2d 744; State ex rel. Board v. Poyntz, 152 Ore. 592, 52 P.2d 1141 (burden of proof on applicant; prima facie showing shifts burden of going forward to Examiners); In the Matter of Eary, 134 W. Va. 204, 58 S.E. 2d 647 (semble).

[41.5] For reasons given later (pp. 55-56, infra), we need not decide whether California's burden-of-proof rule could constitutionally be applied, as it was by the Committee after the first Konigsberg proceedings, to the requirement of nonadvocacy of violent overthrow.

[42.6] The Court assumed, but did not discuss, the constitutionality of California's burden-of-proof rule as applied to the nonadvocacy-of-forcible-overthrow requirement of the requirement of the California statute.

[44.7] Moreover, even if there could be debate as to whether this Court's prior decision prevented new hearings on matters that had already transpired at the time of the first state hearings, there can be no doubt that such decision did not prevent California from investigating petitioner's actions during the period subsequent to the first hearing. Therefore we would in any case be presented with the question of the constitutionality of the State's refusing to admit petitioner to the practice of law because of his declining to answer whether he has been a member of the Communist Party since the termination of the first set of hearings.

[45.8] The transcript of the original hearings before the Committee has been made part of the record before us in the present case.

[47.9] There is no basis for any intimation that the California Supreme Court fashioned a special procedural rule for the purposes of this particular case. The California Bar Committee has in the past declined to certify applicants who refused to answer pertinent questions. See Farley (Secretary, Committee of Bar Examiners), Character Investigation of Applicants for Admission, 29 Cal. State Bar Journal, 454, 457, 466 (1954). No more does the State's action bear any of the hallmarks of a bill of attainder or of an ex post facto regulation, see Cummings v. Missouri, 4 Wall. 277; cf. United States v. Lovett, 328 U.S. 303, especially in light of the fact that petitioner was explicitly warned in advance of the consequences of his refusal to answer. Likewise, there is no room for attributing to the Committee a surreptitious purpose to exclude Konigsberg by the device of putting to him questions which it was known in advance he would not answer, and then justifying exclusion on the premise of his refusal to respond. So far as this record shows Konigsberg was excluded only because his refusal to answer had impeded the investigation of the Committee, a ground of rejection which it is still within his power to remove.