*1 September C. D. En Banc. 4972. 1960.] [No. Application In the Matter Brooks Robert Boland Admission to Practice Law the State for Washington.1 Palmer, & Slem- Cox, Little, LeSourd, Kenneth A. Scott mons, Riddell, Williams, Riddell & Voorhees, Donald S. applicant. for Royce, governors.
T. M. for board of curiae. Walkinshaw, amici Arthur Barnett and Walter G. per- application in this court J. This is Mallery, application re- The mission to take the examination. bar previous denied his cites that the board of has ground application upon a man of he was “not good character.” state since 1946. a resident this been years fifty and is
He is a citizen of the United States University graduated age. law from Columbia 1933, approved association. the American bar school, is which New state of York law in the He admitted 1934. man of “not a upon of a predicated his conviction moral character” 1Reported P. 840. in 355
felony approximately twenty-two which he served three-year penitentiary. months of a in a sentence Federal The facts in his are stated in Brooks v. States, case United (2d) 134, 147 F. as follows: *2 residing appellant, a citizen “The within the Southern age subject York, made him
District of New
whose
to
provisions
Training
under the
classification
the Selective
duly registered
1940,
and Service Act
with his local
having
to
and,
board
established
status
be that of a
(g)
Appen-
§
U.
A.
conscientious
under 5
50
S. C.
305(g),
§
dix
IV-E. He
was classified as
was examined as
physical
to
fit,
Public Service
refused to
and,
his mental and
fitness
been found
report,
transportation
to
was ordered
to Civilian
Camp
Mancos,
No. Ill at
then
Colo. He
purpose
for that
and so notified his local
Having persisted
refusal,
board.
in
indicted,
such
he was
§
Appendix
tried, convicted, and sentenced under 311 of the
appealed.
to
U.
Title 50
S. C. A. and has
questions
“The constitutional
now raised are not new
uniformly
adversely
and have
been decided
the
to
conten-
appellant
Weightman
tions
in cases like
v. United
States, Cir.,
1
142 F.
188,
Sanford, Cir.,
2d
and Heflin v.
5
government
142
2dF.
798. The federal
in the exercise of
power
its undoubted
to raise and maintain armed forces
protection
country
disregarded
for the
of the
could have
appellant’s
scruples against participating
conscientious
conscripted
any military
in such service and
him for
service
mentally
physically
he
which was
fit. United States
v. Macintosh,
605, 622, 623,
283 U. S.
51 Ct.
75 L. Ed.
S.
Having respected
objection
1302.
his conscientious
to all
granting
exemption
service,
such
even to the extent him
duty, Congress
from non-combatant
in
could
the exercise
power
reasonably
of its incidental
do whatever was
neces-
sary
appropriate
to raise and maintain armed forces
provided
given exemption
that those
were
who
from such
required
perform
service be
im-
such work of national
portance
they
perform
were
under reasonable
able
regulations.
many good
rules
may
There reasons which
Congress
provide
enough
have led
that
so
but
is
during
such action
have
been considered needed
great
of those
emergency
upon
national
for its effect
the morale
do serve
in
armed forces. As was said
who
in United
v.
279
Schwimmer,
644, 651,
U. S.
49 Ct.
S.
448, 450,'
than their mere refusal Hirabayashi arms.’ See also bear States,
v. United
320 U.
Ct.
S.
S.
1375,
“That if the Robert Boland be found good character, to be man of he has otherwise com- plied necessary requirements all of the him to entitle general applicant.” take the bar examination as a governors finding act a man of ar is not bitrary capricious. adopt that “The acts We its unjustifiably defiant of were laws of the United States.”
No one overrule has contended this court should person the board of and admit a feloniously refusing service while noncombatant country’s theory pre- Instead, aid war effort. *3 applicant’s a character sented is that the defect of is temporary elapse time and not an nature does survive emergency. This and the national sufficient to end war implica- temporary is as no future defect considered unlikely, present applicant his at because the is most tions example personal opportunity age, to set to have another It is therefore the Nation’s war efforts. of resistance to substantial that there been no considered immaterial change principles adheres, to which he his felonious very day. statements, to this his own theory transitory adopt toas are not inclined We Age reduced his applicant’s not character. alone has example is zero. Personal potential for war resistance way exemplifying his only nor most effective neither the impede lawyer his coun- principles. can An old felonious young ways many as one. try’s well as effort in war go saying con- are here that we not It without should punishment of the additional cerned with felony. is past and he his sentence He has served his large. Nevertheless, his with permanently at directly and neces- effort, is refusal to aid war fixed his sarily question law. when he admission to seeks applicant’s character his laudable
On the credit side rights preoccupation Indeed, the civil liberties. very liberty as such, are essence of we individuals, implement know and seek it. ledger denial
On the felonious debit side any duty enjoyment individual of these related to discerning loyal of his A citizen is aware liberties. liberty acknowledges great heritage to do duty, preserving sense his share in it. Without up of citizen- to the standard does not measure attorney ship rightly expected of an at law. prepared find that
We arbitrarily capriciously.
acted application is denied.
Ott, J., concurs. JJ., concur J., Donworth, C. Weaver, Hunter, the result. (concurring result) poses Finley, J. in the case —This philosophically
old, problem. debatable, It a head- involves diametrically on opposite collision opinions between two or ideas as to moral values. problem may dramatically illuminated
following: (1) killing beings Is war and the of human (a) (2) therein moral or immoral? Is refusal to bear arms country, alternatively, (b) for one’s own or refusal to serve ain work or war, labor in time of immoral? emphasizing patriotism, majority On hand, the one rule society and welfare in ours, a democratic such as there is *4 by view, held most citizens, that all have or obligation morally essence moral or one— defensible —in support country and defend our in time of war. Contrari- underlining wise, faith matters of individual con- religion, by science or there is the held Mr. view Brooks herein) (the applicant generally, by and, conscientious ob- jectors (paraphrasing Voltaire) killing of human beings and immoral, wartime murder, nonetheless
despite trumpets. the numbers the sound involved and differing pro- viewpoints fact that their ponents strongly good faith, each held and in and that most meaning, con- view can rationalized terms of well objectives, complicates structive social rather than sim- plifies problem. legal
Generally speaking, and in a context standard recognition inconsistency in dimensions, orthodox of an surprising, appearance moral seem even an values with strangeness. ex- However, sound in terms of common or opinion actually perience, differences of as to values surprising. any event, should not seem too In posture, problem appeal in this in the it above-indicated reference to follows that is not one to be resolved objective com- standards; it matter of absolute or promise nor is attempting to work out a nice balance and between simply competing conflicting ideas. The has no or case requires easy, a clear-cut black-or-white solution. Decision approval or the other of two inconsistent choice and of one having strong, persuasive, values, each emotional words, I am convinced that the de- In other overtones. simply purely matter and function herein is cisional judgment. philosophi- personal emphasis and While value usually spirited, and stress can be intense cal discussion personal emotions, conscience, and in terms strain, and judicial responsibility, contrast, decision is minimal. for in terms of me, troublesome most has been herein personal responsibility, and and emotions, conscience, daresay members this court. for other applicant, is clear that the Robert
In the case it instant many years, as a matter of con- Brooks, has for Boland opposed religion, serv- been to war science or conscription camps, kind ice, labor, work position During II, he made his World War in times war. unequivocally forthrightly to his local draft known district of the United the local office and to board attorney. register but, ordered draft; when did He comply physical he refused to examination, duly was, He his intention. draft notified *5 (4-E) by in fact, a conscientious his classified as report local Thereafter, draft he was ordered to board. a, camp objectors labor for conscientious which was system Mancos, maintained under the selective service at again forthrightly Colorado. Mr. Brooks advised both his attorney’s draft board and the United that he office comply Thereupon, would not with the order. in- dicted and convicted for violation selective service Appeals act. The United affirmed States Court his con- (Brooks (2d) 134); States, viction v. United 147 F. Supreme (324 the United States denied Court certiorari 1027). U. S. 89 L. Ed. 65 S. Ct. It should be pointed out that Mr. was convicted Brooks not because he country, to serve in the armed refused solely forces of his but report because his refusal to to the wartime labor objectors. or work for conscientious jury. At the only time of trial, Mr. Brooks waived His defense was that the act, selective service which he ad- mitted violated, contravened what he conceived rights. to be his constitutional He made a formal statement, setting refusing forth his reasons for to the Colo- camp, saying among things: rado work other “I Congress do not believe that under the Constitution right deny has compel freedom of conscience, or men to do an act which their conscience tells them is mor- mine.) ally (Italics wrong.”
Incidentally, hoped he further stated that he to convince example, others, his to share his views.
Finally, hearing at the before the board of Governors of the State Bar application Association on his for admission practice to the Washington, of law in the state of Mr. represented Brooks, effect, that he did not think the during situation which confronted him World War II could again age, occur because of his and otherwise; but, if it should, he felt that likely his course of conduct would although experience same as prison (upon before, twenty-two his conviction he served months of a three- year sentence) undergo was one he would not wish to again. gathered foregoing,
As will be from the our task attitude, determine Mr. Brooks’ conduct and whether felony violating conviction for the Selective Service disqualifies grounds him Act, on moral in this law state. *6 authority setting promulgate
The of this court to rules qualifications an for the forth met be unquestioned. practice course, Of law in this state is qualifications con- forth some rational set must bear practice. applicant’s fitness nection to the overall v. Bar Examiners New Mexico Schware Board A. L. 77 Ct. R. 353 U. S. 1 L. Ed. S. (2d) 288. dissenting opinion for Mr. the case
The herein states strongly positive Brooks, values, in as as terms of history of conscientious could It refers to the be done. country. objection con- effect, the dissent in our war supervene that conscience cludes faith matters of governments; temporal policy that and law of transcend patterned objection ac- war, and conduct conscientious contrary, highly cordingly, immoral, but, on is not certainly and wish for in can understand I nature. legal validity acceptance, application and the universal point thesis However, the dissent’s view. of this yet unfortunately, not ideal, which, an statement of do na- individuals; nor not as do live been achieved. We society, war, con- free from an ideal world tions exist in ideally rule conceived world trolled ordered of law. to Mr. Brooks the Service Act accorded Selective objector. a national As matter of conscientious
status compulsory policy, service. him from it excused policy him, However, act did excuse a matter of noncompliance with conditional re- otherwise, from its camp report quirement for conscientious he to work requirement objectors. think, was, I under conditional This reasonable, and even a circumstances, rational, all the actually morally justifiable Service Act one. The Selective fact, belief; freedom of Mr. Brooks’ not outlaw did giving him the of a and ex- status conscientious cusing compulsory military recog- service, him from the act provided nized and, think, freedom belief reasonable my judgment, latitude relative to action and conduct. In emphasis practicabilities on the of the far-from-ideal society world in which live, we the refusal of Mr. Brooks comply requirement with the conditional of the act— he to a work and not unreasonable —was morally justifiable. Furthermore, I believe rational con- nection exists between Mr. Brooks’ conduct his fitness practice agree law. At the time, same I cannot with the implication rather majority opinion broad that a objector per morally conscientious se is unfit to law in this state. past crux of this matter as I see is Mr. Brooks’ present position basic cannot —that compel him to do which, act terms conscience or
religious concepts, personally morally believes *7 wrong by (a) his affirmative conduct re- —manifested fusing to to the work in Colorado when ordered (b) felony (c) do, so to conviction, and his current previous by affirmation of views and conduct, evidenced testimony hearing at the before the Board of Governors of the State Bar Association.
Undoubtedly, advocacy concept legal under the of our system, attorneys expected question are and, sense, to ain oppose government policies legal, orderly and law in a seeking protect personal manner in either their own interests or those of their However, clients. at the same legal profession time, of the members are officers our of they, perhaps courts. As such citizens, more than other have a basic of obedience to the and a law funda- obligation support mental sustain the they particularly of which in times na- of citizens— emergency. tional my judgment, by Mr. has, best Brooks his attitude (evidenced by record), and conduct the demonstrated traits approved of character which do not have be coun- by legal profession tenanced the of members the our of state. under the “rational connection” test that, believe supra, Examiners, announced in Schware v. Board Bar of displayed by particular Mr. traits of character Brooks disqualify him for the in the of law state Wash- ington. way
Parenthetically, by epilogue: If, as under- may standably happen, subject this matter should be appellate Supreme of further review United States we, court, Court, as a state shall course accede in that this matter as reached court. resolution of How- put my opinion, one hard find would be ever, making significant na- a distinction between basis judicial there, here and as the function insofar ture of words, concerned. In other review on the instant case is nothing simply more than a mean substitution merits would judgment majority personal emphasis and value Supreme United Court for of the members judgment majority emphasis and personal value Lastly, supreme state court. our own of the members of appellate hoped review, it can further if there should be is, be articulated as realis- result, that the whatever attempted tically herein. as has been hereinbefore, I concur in the dis- indicated the basis On by the Board position recommended of Gov- this matter majority opinion. reached in the the result ernors, and in (dissenting) Hill, —The J. applica- Washington refused the association has state bar to take the bar examination. Boland Brooks tion of Robert brevity, majority has, set out the with admirable controversy these words: gist this *8 finding: governors made the “The board “ Brooks, applicant, Boland be found Robert if ‘That good character, he has moral otherwise a man of to be complied necessary requirements entitle all of the with general applicant.’ aas the bar examination take him to governors in that the board of the “The act applicant good character, is not a man of not adopt finding that ‘The arbitrary capricious. its acts We or applicant unjustifiably defiant of the were ” United States.’ laws
75 applicant asks that we review the evidence before governors; the board of and that we conclude therefrom possessing good that he is a man and en- titled take the bar examination. questions
The final determinations in of admission and necessity, great disbarment are, of ours; attach but we importance to the determinations of the board of disciplinary proceedings. relative both to admissions and to tremendously The board renders valuable service in these indispensable areas; indeed, an not, one. do however, We majority as the seems hold, have find that the board arbitrarily capriciously acted or before we can arrive aat conclusion different from that of the board on the same Laughlin Washington record. State ex rel. v. State Bar (1947), (2d) (2d) Ass’n 26 914, Wn. P. 301; 176 In re Levy (1945), (2d) (2d) 607, 23 Wn. 161P. 162 A. 651, L. R. re 805; In Bruen 1152; 102 Wash. 172 Pac. (D. McVicar v. State Board Law Examiners C. Wash. 1925), Day (1899), F. 33. In re See also 181 Ill. L. N. E. 50 R. A. 519. gover- The issue is: Does the record before the applicant nors, and this court, now before disclose that the good possess a does sense, not moral character? In one yet, very paradoxically, very is a issue; narrow it is broad. concept true This is because our of what constitutes moral good turpitude, or what constitutes a moral character widely divergent. things applicant There are done has that would believes, there is much that he with do; which I would disagree. comprehend appeal I find it difficult to unwilling one the shelter of the constitution who is asserting right who, it. askance at defend I look one religion, any part resisting refuses to have to freedom of enemy upon declared war us act who whose first religion. every invaded was to abolish freedom of land Nothing done believes, however, that the not a man of me that moral character convinces acting dictates of accordance conscience. accorded, asked, status of
76 objector opposed to noncom- conscientious combatant — seriously suggested has .service. No one batant being objector per that a conscientious se establishes although majority the of absence imply sweeping in this near to as much statement seems opinion: the end “ loyal discerning of his . . . A citizen is aware acknowledges duty great heritage liberty to do of duty, ap- preserving it. his share in Without sense up citizenship plicant not measure to the standard does attorney
rightly expected anof at law.” This overlooks the fact that there be conflict between duty duty country. Duty power to God and to a moral Long higher always maintained. than the has been state ago, Story Mr. Commentaries on the Consti- Justice ed.), (5th p. § II States, 1876, tution of United Yol. 631, said: “ beyond rights are, indeed, . . . of conscience ” just power. . . human . reach of Hughes
Mr. in United Chief Justice in his famous dissent 605, 627, L. Ed. 283 U. S. 75 States v. Macintosh joined Justices Ct. in which he was S. 633): (p. said Holmes, Brandéis, Stone, “ conscience, But, . forum of . . higher always power The reservation maintained. been than the State obligation, supreme a matter many principle, unquestionably of our made would ” law-abiding . . . citizens. conscientious and 634): (p. and, further “ particular dogmas putting their And, aside implies deity, conceptions itself conscience freedom of duty. paramount
respect for an innate conviction objector opposed to both However, as a conscientious was service, combatant and noncombatant perform subject requirement “work still (See 5(g) § importance” direction. under civilian national Training 1940, 54 Stat. Act of and Service Selective 305(g).) § Appendix A. 50 U. C.S. applicant’s
It a so-called refusal public perform civilian service such “work importance,” national the board found which “unjustifiably defiant to be of the laws of United States.” *10 applicant tried, and convicted for his indicted, was report camp. to to a refusal such if
It must the real there is basis, is here that we find any, good applicant a that the is not man of for moral character.
Certainly objector sent the conscientious to civilian public camp as a was treated “second-class citizen.” service He was compelled “. to labor Civilian Service Public dependents had for
without remuneration. His themselves without He to fend any aid or kind. benefits financially unprotected injury left in case of was assigned during except he service, death where to was by compensation work covered three severe financial state workmen’s laws. These deliberately
penalties were inflicted on men them into who allowed their consciences direct civilian rather than service. “This made a virtual farce of freedom of conscience.
practice, pay men had to for their conscience the im- poverishment only of themselves but their families. opinion . Committee, . In of the American Friends Service ‘long such situation could not continue with- jeopardy democracy. out Equal health of respect our and consideration for the welfare of all its citizens should prevail if we are principles to maintain the foundation ” Conscription our Sibley nation.’ of Conscience, Jacob, pp. 216, 217.
On trial in the United States district for court failure transportation public for civilian service importance,” appeal work of “national and on his from a conviction for that offense to the circuit court of appeals applicant circuit, the second at all times position conscientiously (by took opposed that he was religious training belief) reasons of form of compulsory camps; in civilian labor and he also raised including: issues, certain constitutional whether the service required taking involuntary constituted servitude or the “property” just compensation. without
In the briefs submitted board of much is made of the fact that the raised these additional issues, in addition to his claim that he was a conscientious they me, to such service. To were issues nothing away raise, entitled and took from his stand objector. aas conscientious twenty-two
His was affirmed. conviction He served three-year paroled. months of a sentence before he was was defiant the laws of the United deliberately imprison- He chose alternative States. penal public ment in a institution to service in civilian camp. him Does brand committed service involving turpitude, an act and as a man “not of Through I think not. character”? centuries imprisonment have suffered death men women integrity *11 their of rather forfeit conscience. than imprisonment justified; saying that was not I am not standpoint government, there of was no rea- from the alternative. Selective Service Act demanded sonable general men from of same serious sacrifices the most applicant. The morale those in the of armed class as objectors required conscientious that should not forces Relieving wholly escape the conscientious all service. ob- any obligation entirely to render jector services would of principle equality upon obviously of not accord Act If is based. Service conscientious which the Selective by complete objection service were rewarded distinguish exemption, be more difficult be- it would honestly urging objections conscientious who men tween objections personal, urging material such and those (1944 Weightman v. United As said benefits. (2d) 1st) 188, 192: 142 F. A. C.C. “ simply objectors ex- be should . If conscientious military duty upon cast other the burden cused from family responsibilities, employment like'age,
men of thereby enjoy leaving life, civilian no free to doubt them falsely profess many, conscien- maybe men would some, privileged only status of objections obtain tious exemption. To weed out the insincere and an thus avoid way abuse, obvious the honest conscientious has been made hard. ...” saying, having
I am however, refused —because firmly-held principle go camp;' adherence to to a work —to penalty paid imprisonment twenty- two does months, a lack moral indicate character. holding
A “unjustifiably recent is that one can defiant pay States,” laws United and refuse to an guilty involving tax, income and still not be offense turpitude. (2d) In In re Molthan 52 Wn. 560, 562, 327 P. Molthan filed returns but refused pay taxes because “ ‘. . he maintained he was a second class citizen of the United States virtue of the fact that been, he had security trial, without risk, denominated a and that such employment a torney.’ denied to him his usual an at- ” suppose Let us that, certain colonists so believed strongly that repre- there should be no taxation without they prison pay sentation that went to than rather certain obey imprison- taxes. Did a breach of the law and ment therefor lack establish a of moral or did they deep strong it establish that men were con- victions? Henry
It Thoreau, well established that David whose essay Duty entitled On the classic, Civil Disobedience is tax— n jailed pay poll in Concord for his refusal protest against supported slavery. legend Ralph There is a that his friend Waldo Emerson *12 jail, “Henry, why you visited and asked are Thoreau rejoined you why “Waldo, here?” and that Thoreau not here?” challenged, day
I am in a when trend is to sacrifice expediency, preferred go jail principle one who rather than do what his conscience said should do. turpitude event, here, I can find no moral and no character. of moral lack
Finally, there is no rational connection between the
80 acts fitness
claimed disqualifying applicant’s law. Schware v. Board Bar Examiners New Mexico 353 U. S. 1 L. Ed. 77 Ct. 232, (2d) 796, S. (1957), 288, A. L. R. in In re 64 (2d) Flynn quoted P. 150. 328 (2d) (2d) Wn. Boland directing enter an order that Robert would to take the state bar ex- Washington Brooks’ application granted. amination be J. J., concurs with Hill,
Foster, J., result concurs dissent. Rosellini, Department One. October 1960.] 35319. [No. Company al., et v. Respondents, Service Johnson Surety al., Defendants, Roush et American Leo Company al., et Appellants.1 of New York 1 Reported 815. P.