Law Students Civil Rights Research Council, Inc. v. Wadmond

H7 by motions dismiss raised their furthermore, does sues Grover; Grover since upon failure to state claim con- amount the small not even have has, granted. can be relief Christians York that with New tact follow result would same fortiori. It is so ordered. brought ac- into this be could If Grover any supplier tion, material of raw then engages in inter- manufacturer which (cid:127)a compelled to de- could be state commerce jurisdictions foreign in fend an action had supplier has never with which not fol- result contact. Such a does reasoning holdings of the from the low RE CIVIL RIGHTS LAW STUDENTS Supreme Internat’l Shoe and in COUNCIL, Toby INC., B. Go SEARCH

Hanson, and would exceed bounds lick, Mauro, and William James Jr. C. justice.” play “fair and substantial H. on of themselves B. Rodarmor behalf situated, similarly persons and all other joining policy No favors reason Plaintiffs, third-party here. issues defendants third-party turn in the action well Muldoon, WADMOND, Lowell A. substantially Felix out to different be Weisl, Hughes, Edwin L. Mark F. Bruce pri- primary In the those in the action. Bromley, Goldwater, Arthur H. Monroe mary the central will action Schwartz, Teencher, Bernard Thomas B. impurity whether there was Dyett and A. as chair Alfred Giardino Blumenthal chocolate delivered Appellate man and Di members Chunky, the warranties the nature of Department vision First Committee Chunky, wheth- made Blumenthal to Applicants Character Fitness negli- er Blumenthal manner Bar, Admission to the Defendants. gent, damage to and the extent third-party Chunky. action, Stephen WEXLER, al- Martin H. Gabriel Kai mowitz, Cover, though Robert M. the Columbia impurity will be is- the same Guild, City Law York Students New sue, inquiry upon the will be focus Chapter Lawyers Guild, of National Blumenthal, milk delivered Grover Plaintiffs, by third-party de- the warranties made Blumenthal, and Grover’s fendants The SUPREME COURT OF STATE processing. It no methods of YORK, OF NEW APPELLATE DIVI primary means clear trial SION, FIRST JUDICIAL DEPART proceeding third-party one actions MENT; Supreme Court of the State significantly would economical York, Appellate Division, of New Sec Furthermore, expedient. Blu- more Department; ond Judicial the Commit primary prevail in the were to menthal Fitness, Supreme tee on Character and taking proof action, col- on the York, Ap Court of the State of New pellate Division, Depart third-party action First Judicial lateral issues ment; the Committee on Character and proceeding in fact be would the same Fitness, Supreme Court of the State circumstances wasteful. Under York, Appellate Division, Second strain the constitu- there no reason to Department, Judicial Defendants. statutory tional limitations Civ. personal jurisdiction to their exercise of United States District Court breaking point. S. D. New York. foregoing reasons, the motions For Feb. third-party to dismiss defendants third-party complaint for lack granted, personal jurisdiction unnecessary pass upon is-

becomes D.C., also, F.Supp.

See

H9 Levine, Alan City, H. (Jere- New York Gutman, miah S. Goldsmith, Steven New City) plaintiffs York for Law Students Rights Civil Council, Research Inc., and another. Boudin, City, York

Leonard B. New Rabinowitz, (David Rosenberg, Boudin City), plain- Standard, & New York Wexler, Stephen and anoth- tiffs Martin er. Atty. Gen., Cohen,

Daniel M. Asst. (Louis Lefkowitz, Atty. Gen. J. York) for defendants. State New (Mi- Peck, City, York David W. Cromwell, Maney, & chael M. Sullivan City) New York defend- for individual tified board of law exam- iners, ants and defendant Committees. be satisfied that such shall person possesses the character FRIENDLY, Judge, Before Circuit general requisite for an attor- fitness MOTLEY, and Judges. District BONSAL ney eounsellor-at-law, shall admit practice attorney and

him to as such the courts of counsellor-at-law all Judge: FRIENDLY, Circuit state, provided in all that he has injunctive These two actions respects complied rules declaratory relief, invoking jurisdic our appeals and the rules court tion, 1343(3), U.S.C. to enforce the § relating appellate to the ad- divisions Rights Act, Civil 42 U.S.C. chal § attorneys. mission of lenge validity pro the constitutional provision implemented Article This cedures admission to the New York and Rules Practice Law of the Civil bar, generally particularly both as pre adopts rules enacted applied in the First and Second Judicial viously promulgated the Justices Departments.1 plaintiffs *The The rules2 Appellate Divisions. Civ. are three candidates certified appellate comprising 94 direct the Article having passed examinations, their bar department judicial in each division Guild, the Columbia Law Students investigate the to appoint committee City Chapter the New York the Na of each and fitness character Lawyers plaintiffs tional Guild. The 9401; prescribe admission, R. for Civ. 2917 are the Law Civil Students appel the ordered “unless otherwise Rights Council, Inc., organi Research division, person be admitted no shall late zation of some law students with from the practice a certificate without chapters sixty including law schools carefully proper it has committee City, four in New York and three law investigated fitness the character and plan apply who students admission respects, that, in such the and eligible. to the New York bar when Both R.9404; admission,” and he is entitled sought actions are to be maintained as committee, “subject to the authorize persons class seeking on actions behalf of all appellate justices of the the approval of planning to seek such admis * ** from and prescribe division, Appellate sion. The are the defendants of state a form amend to time to time Divisions and their Justices and the Com appli the questionnaire on which ment mittees on Character and Fitness information all the forth cant shall set Departments First and Second Judicial required by the committee and data and their members. including justices, appellate division 90(1) (a) Section of the New York Ju- past present and such specifically his diciary McKinney’s Consol.Laws, Law, c. may re residence as places of actual 30, provides ” * * * Rule 9406 9404. quired R. Upon the state board of law exam- directs: certifying person iners that a has certificate said person receive shall No passed required examination, person no and practice committee that pensed with, examination been dis- as be admitted appellate shall division of law attorney counselor at supreme department court in the state, he shall unless of this courts person which such have shall been eer- Suffolk, Nassau, Queens. Rockland, 1. The New York state of is divided Judiciary 140. judicial departments. Law §§ law four N.Y. into 4; Judiciary C, § Const. Art. Law 70. § Law and Practice the Civil Provisions 2. Department The First embraces Rules as denominated are Rules Bronx; judicial counties of York changed confer- Second, Richmond, Kings, CPLR § counties See the state. ence Orange, Judiciary Westchester, Putnam, Dutchess, § Law satisfactory proof to the ef- furnish have moved for dismissal of the com plaint or, alternative, fect: for dismissal complaint relates to the so far as the he in the form of that government believes con statutes and remission of the issues of the United States Judge cerning questionnaires to Mot loyal to such ley. * * * complaints attack a number of I. provisions violating these as the First proceeding we to the merits Before Amendment Constitution as made respect examine claims made must applicable to New York the Four- standing plaintiffs, the sua- of the to the bility statutory provisions, teenth. The nota- defendants, the failure bly 90(1) (a) Judiciary Law and § quoted join Appeals or its mem- portion the lenged of Rule chal- desirability bers, of abstention. and the being vague imper- as so missibly respect “chilling individual broad as to have a ef- With standing fect,” Pfister, plaintiffs, admit the see Dombrowski v. defendants passed bar of the three who have 14 L.Ed.2d however, They plaintiffs’ on contend exercise of their examination. statutes, rights. that, First challenged Amendment Rule 9406 so far as concerns investigation allowing equitable relief three no need for into mere should since, beliefs denial of committee admission if the character imper placing applicants them on an and as them certification a bur- refuse proof they ground, den of an ade cannot can obtain constitution- missible appel ally applying remedy by questionnaires quate be made to bear. per prescribed by and, courts if the state two late division committees seeking requiring refusal, by the review in criticized as disclosure of acts sist in that, con beyond scope Court; far as Supreme so and associations objections proper inquiry. Believing questionnaires, their that cerns the substan- single judge for a most a matter tial constitutional issues had been ten- are at Judge Motley requested questionnaire effective dered, the Chief each since it unnec Judge part find of the state. We of the to convoke a court Circuit argument.4 For 2281, 2284, essary judges, this of three U.S.C. to evaluate 28 §§ Judge Motley plaintiffs who are done. re- the three and this was we believe intending apply ad judgment to made on motion law served students standing equitable plaintiffs seek 2917 to consolidate have 68 Civ. mission pursuant themselves have set two to Fed.R.Civ.P. relief since suits large 42(a); grant sufficient apart we the motion have from the standing protest statutes together. ly Plaintiffs to have considered cases that sought summary judgment or, governing to the bar if admission Amendment granted, preliminary of First in- that not be junction a inhibit exercise study. during period of their discovery. rights The defendants Further, embracing students. of the law term ns favor use that 3. shall AVe quite argument, Rules, in the no merit we see note see any question apart whether from plain- argue that 4. Defendants also exception Rights an xVot ereates Civil passed the examination who have tiffs purpose anti- to injunction 22S3. § by presenting have, certificates their prevent a state statute obtaining ques- appellate division and invoking aid from defendant court commit- from the character tionnaires insti- block an action court a federal “proceedings tee, in a commenced prevent against a state him —not tuted statute, anti-injunction within court” seeking aid federal from court grant 22S3, and that 28 U.S.C. § an un- what ho considers to eliminate injunction that statute. violate would by the created roadblock constitutional true, it would were if this Even injunction granting state. prevent us

123 244, regulations Cole, (2 alleged F.2d 250 Cf. Gart v. that are 263 to have that simply Cir.), denied, cert. result because some of them are (1959); appointed 929 Gonzalez robed and L.Ed.2d others have been Freeman, U.S.App.D.C. 334 F.2d those who are. Rather it would seem (1964); Corp. v. anomalous while 570 McNamara, Overseas Media that federal courts could U.S.App.D.C. complaint plain entertain a similar to the Davis, Standing: (1967); respect Tax tiffs’ made F.2d to other professions, Others, payers and licensed U.Chi.L.Rev. such as medicine (1968). accountancy, they powerless students 617-628 with re Since spect ques grant raise a admission the bar. The substantial constitutional injunctive respect relief tion with least one in a like to at case this judges statutes, would not a of three is re have the terrorem effect court on quired argument judges purpose; the threat of a subse quent damage questionnaires have; should action rather, that attacks on would single judge ruling be remitted a would furnish a district definitive point opinion. will later federal law for be examined their future guidance, and, above, We no to consider fn. also have standing occasion now shown infringe organizations policy expressed would not various joined complaints. junction statute, in the that have federal anti-in proscribing injunctions U.S.C. § considering an in whether stay “proceedings would in a State junction declaratory judgment or a court.” The criteria set forth Dom issued, prin should be ciple we from the start Pfister, supra, grant browski for the parte Young, of Ex extraordinary injunction relief of 52 L.Ed. 714 administering against the enforcement a state statute when officers state stat alleged present to be here. Plaintiffs ute act in a manner that exceeds consti challenge disposi do not a state court’s limits, they claim to tutional have no case, tion of an individual but attack as sovereign immunity. Against this is the “overly vague regulations of broad and judge equally principle well settled that a expression,” see exercising judicial function is lia regulations pro at 1123, the rules and damages ble for under U.S.C. § mulgated appel and administered 547, 553-555, Ray, Pierson delegates. late divisions and their alleged infringement of Amend First rights ment of law cannot be students interest served While the dissipated processing particular making principle the latter the state applications for individuals’ admission judge free “to decide all within his cases factors, to were jurisdiction brought him, the bar. These that are before “controlling equi including on both the exercise controversial cases arouse that power table issue” in feelings and the abstention the most intense in the liti Johnson, Dombrowski, v. see Cameron gants,” without “fear that unsatisfied 741, 755, 1751, litigation 381 14 L.Ed. litigants may 85 S.Ct. hound him with dissenting), J., (1965) (White, 2d 715 charging corruption,” Pierson malice appropriate our consideration of make 554, Ray, supra, v. 386 U.S. though equitable relief even the defend one, applica 1218, important at bility is its liability would immune from ants be injunction by no to an means damages of the for their administration McLeod, v. 385 clear. States See United challenged procedures, see Saier State (Wisdom, 734, (5 1967) F.2d 738 Cir. (6 Cir.), Michigan, Bar of F.2d 756 J.). perceive 293 We what interest fail 388, holding denied, federal courts cert. 368 U.S. would be served Gately Sutton, enjoin (1961) ; powerless officers 7 L.Ed.2d 343 alleged 1962); (10 Clark v. acting F.2d Cir. that 310 107 under a statute 1966) (9 rights Washington, protected F.2d Cir. ly 678 deprives 366 citizens delegates (judges Rights promulgating immune for and their the Civil Act 124 ; Keyishian proceedings). (1964) To L.Ed.2d 377 in disbarment roles Regents, v. Board hold otherwise would be leave without depri- significant remedy class of the á rights federal under color

vations of proceed therefore to the merits. We Congress state law that intended to redress under federal courts II. C. 1983 and U.S.C. § § tarry long We over the need not no see force in de We likewise 90(1) requirement claim that § argument that the fendants’ suits should (a) Judiciary Law entrance dismissed, pursuant Fed.R.Civ.P. only per to the bar to a shall be allowed join Ap for failure to Court of “possesses son who general the character and peals plaintiffs’ members. While requisite attorney for an fitness “statutory govern scheme” attack on the impermissibly and counsellor-at-law” is ing Rule to the bar takes in a admission vague. significant perceive We no dis VIII, Appeals, of the Court Rule tinction between and California’s re of that rule does not necessi involvement quirement “good character,” moral du joinder any more than tate of its authors plicated many states, which the application stat of a attack on the Konigsberg Court said in Bar of legislature. requires joinder ute California, 36, 40-44, adopted Moreover, rule, implement 6 L.Ed.2d could Judiciary Law is attacked § Indeed, question.” “well be drawn in precise failing to furnish standards more requirement York’s somewhat Arti in 90 and than those found CPLR § specifying more definite in failing pro cle thus rescue the required character rectly are those di traits allegedly in cedure from the defects prac suitability for the related to provisions. the latter here in Section granted tice of law. Once it is by the and Article 94 have been enacted constitutionally require state can some they place Legislature, ad actual thing applicants more admission appellate divisions ministration to the bar than absence kind of delegates, the committees and their criminal warrant ex record that would fitness, the Court character and pulsion, Konigsberg must be taken to practical Appeals. There is no obsta perforce decided, must the state use adjudication cle ality of the constitution language generality. of some Such procedure absence of this words, law, like our familiar in ac others As members. Contrast Court or its quire through years of content adminis Free For the Preservation sociation see, tration, Peters, App.Div. g., e. Re Wadmond, Choice, F. Inc. v. dom of aff’d, 250 N.Y. N.Y.S. (S.D.N.Y.1963). Supp. 648, 651-652 337, rearg. denied, N.E. 252 N.Y. 166 572, (1927) (admission N.E. abstention, respect de With denied in another because of disbarment de made clear what have not fendants 391, state); App.Div. Greenblatt, Re 253 pro state of construction issues batable (admission (1938) 2 denied N.Y.S.2d 569 ceedings Their contention resolve. could misrepresentations to charac because of is so to the bar that admission is rather applicant’s ter dismissal committee about peculiarly that of state concern a matter misconduct); Applica college from for left the state its should resolution 282, Cassidy, App.Div. tion of 51 course, 268 to review courts, subject, of rehearing, 202, 270 has N.Y.S.2d aff’d on Supreme But that Court Court. aff'd, App.Div. 1046, 840, given claims 63 N.Y.S.2d to similar shrift short (1944) 926, (ad concern, as 296 N.Y. N.E.2d 41 matters, 73 equally state of urged applicant of Educa mission Board denied because education, v. McNeese 1433, 10 668, creation of armed units for forceful tion, S.Ct. 83 373 U.S. employees, government overthrow and made in and state L.Ed.2d indicating 360, lack of Bullitt, 84 S.Ct. consistent U.S. statements Baggett v. edge veracity). Board of v. but See also Schware committees would be re- 232, 247, quired Examiners, investigation. make Bar U.S. extensive (con- (1957) 752, 1 L.Ed.2d 796 Plaintiffs’ substantive attack is that curring opinion Frank- Mr. Justice Rule 9406 has the breadth branded as un furter). Plaintiffs’ affidavits important constitutional in such recent eloquently in- about are silent briefs Baggett Bullitt, supra, cases as v. unjusti- New York has stances where 360, 1316; U.S. 84 S.Ct. Elfbrandt v. fiably lack of denied admission Russell, 11, 384 U.S. 86 S.Ct. general requi- fitness “the character and (1966); Keyishian attorney counsellor-at- site Board of Regents, 385 U.S. law.” (1967). 87 S.Ct. 675 When one examines decisions, culling phras in contrast to III. them, plainly from es distin guishable. What the Court found defec dis 9406 demands more Rule Baggett tive in about teachers’ oath initial criticism cussion. Plaintiffs’ specified Washington laws requirement They say procedural. part exacting promise 1931 was the satisfac “shall furnish “by precept the affiant would gov tory proof” in our of belief form example promote flag respect for the loyalty ernment to it unconstitution the institutions of the United States proof ally imposes in viola a burden Washington, America and the State Speiser Randall, tion of reverence for law and order and undivid L.Ed.2d allegiance ed distinguishable fairly We think that case United held States.” Court grounds: on two condemned statute require teachers to make so broad Speiser applied to all veterans claim promise provided no “ascertainable ing property exemption, and the tax required “more standard of conduct” and loyalty re Court oaths differentiated may than a command.” 377 U.S. State quired persons in or class of “a limited at at 1322. The defect in aspiring public positions by virtue of required of oath Elfbrandt evilly motivated, they could, employees, see at danger public safe create serious subjecting the statute S.Ct. at but ty.” at 1343. 357 U.S. at prosecution perjury dis courts, Lawyers, who officers of the charge anyone who office Konigsberg fit the latter rubric. “ during employ or ‘term of office Bar, 54, 81 S.Ct. supra, 366 knowingly wilfully or ment becomes noted this distinction. par of the communist remains a member Rule 9406 is also sustainable ty of or its successors the United States Konigsberg, 366 ground other taken in organizations any or of its subordinate namely, having organization for one “unequivocal indication” lack purposes force the overthrow proof imposes distin a true burden government of the state violence coming guished for from a burden political sub of Arizona of its see no reason with evidence. We ward in condemned as This was divisions.” impose why the latter New York organization cluding join “those who concerning subject respect to a purposes unlawful not share its knowl- but do has detailed Washing- affirm) solemnly (or of I will America and the State of ton, swear “I and and order for law of the reverence support and laws the constitution government allegiance to the the and of undivided of America States United by precept at 361- Washington, will of the United States.” flag respect 362, promote example the 84 at United States of the institutions the participate forwarding do its unlaw- before and who not an to take ** 17, *,” oath, satisfy ful the to them- activities constitutional position through 1241, analysis 86 by foreshadowed selves a of the factual 203, States, v. U.S. data before Scales them his in and United belief (1961). loyalty government L.Ed.2d 782 See to 81 S.Ct. he will swear support. Robel, U.S. interpret also v. to United Defendants States (1967); directing L.Ed.2d command 88 S.Ct. as them “to test Washington, F.Supp. 912 applicants Haskett whether truly for admission can Finally, (D.D.C. 1968). what subscribe to ‘constitutional oath Keyishian ”; they Court struck down office’ read form of “the 601, government “complicated plan,” a 385 U.S. at to United States” variety imposing exactly ill mean 87 S.Ct. what comes within the oath support, “loyalty govern- in New of teachers to defined restraints colleges. ability ment” to York’s to schools mean take the oath good faith. This construction oath; re- oath Rule 9406 not agencies charged very statute with quired admission to the taken its administration rea- is commended bar, Judiciary “consti- Law § son. Since those who Rule authored ¡ Constitution, oath,” York New tutional quite-as 9406 were aware as we are that XIII, support I will “that Art. § very the First Amendment at the lies States, and the the United constitution of government,” heart our “form of we York, constitution the State of lightly suppose they should not had faithfully discharge the that I will applicants idea that should be refused -, accord- of the office of duties ing exercising admission to constitutionally the bar their my ability.” con- best guaranteed rights stitutionality this oath is established peaceable assembly speech, freedom Regents, by Knight Board petition grievances. for redress of per (S.D.N.Y.1967), F.Supp. aff’d they entirely Since were likewise aware curiam, 390 Y, Constitution contains Article Rule does Neither providing amendment, we will simi- hang persons ad- in terrorem over larly they suppose not intended admission bar, like mitted to the statutes applicants to be amendment, refused who advocate Keyishian; condemned in Elfbrandt very even amend- radical goes admis- at the time of it belief ment, Accepting means. de- lawful only. rather claim is sion do, construction, fendants’ as we we could alleged Rule undue breadth of the hold Rule invalid on its face 9406 to be unconstitutionally inhibit- will have an imper- if the it Constitution makes ing persons contem- effect on who give any scrutiny missible to whether bar, plate seeking nota- admission honestly lawfully can take a bly lest students, since fear law will required becoming oath. or- members controversial ganizations engaging protests will Floyd, 385 Bond We do read lack of taken evidence belief 17 L.Ed.2d 235 form of United States prohibiting inquiry to that all disloyalty to it. recognized that end. The Court there legislator who proper implementa- state need not seat If one assumes a pro de- apprehen- “swears to while 9406, plaintiffs’ an oath tion Rule forma claring manifesting disagreement does Rule seem unwarranted. The sions ap- with or indifference the oath.” prescribe a formula which If the state U.S. at at 347. plicant a di- rather must adhere but is may appel- or manifesta- consider declarations rection to the committees and contemporaneously made guide perform- tions taking them late divisions to oath, token same statu- under the of their functions ance tory bodies, inquiry make a whether reasonable It instructs these scheme.

127 engaging tive in fact is not board or acting oath taker commission under holding statutes,” rather [State] The a solemn farce. cf. Lathrop v. Dono gathered by hue, 820, 367 information U.S. 1826, 824-827, 81 S.Ct. Georgia legis- (court 6 L.Ed.2d grating (1961) special committee 1191 order inte tendency to ne- state had no sufficient bar a lature “statute” within 28 position 1257), gate he could long Bond's U.S.C. § Mr. been set conscientiously ineptness tled that take the oath. the 1913 amendment, 1013, 37 Stat. which added that Rule 9406 is therefore hold We the reference to administrative orders implemented in not unconstitutional if neglected correspondingly but alter purpose. Before we accordance with its “upon ground words the un plaintiffs’ proceed con- contentions constitutionality of such statute” should questionnaires appli- cerning for its be overlooked. Oklahoma Natural Gas by prescribed Committees on cation Russell, 290, 292, 43 Co. 353, 261 U.S. v. S.Ct. First and and Fitness Character (1923). But L.Ed. defend 67 659 Departments, consider we must Second question since the ants contend that subject appropriate for whether that under attack cover two naires judges, by adjudication court three a departments, four the case comes within 2281, be remitted U.S.C. or should 28 § exception judge-made ex 2281 to § single judge. to a district cluding of state-wide controversies not parte Collins, importance. 277 Ex See IV. 567-569, 585, 565, L.Ed. U.S. 48 S.Ct. 72 statute, 2281, The relevant 28 U.S.C. § Bank, (1928).; parte Nat’l 990 Ex Public terms, instructs, simple” “deceptively 43, 101, 202 278 49 73 L.Ed. U.S. see v. Bank of Sardino Federal Reserve Sovereign (1928); Camp, 306 Wilentz (2 York, 106, Cir.), 361 F.2d L.Ed. 994 U.S. 59 S.Ct. denied, cert. 385 U.S. Com’rs, (1939); v. Board of Rorick (1966): 17 L.Ed.2d L.Ed. 1242 injunc- interlocutory permanent An Moody Flowers, (1939); enforcement, restraining op- tion (1967); any (9 State eration execution Bailleaux, 290 F.2d 632 Hatfield by restraining any Three-Judge statute Currie, action 1961); D. Cir. Litiga enforce- officer such State in Constitutional District Court ment of such statute or 31-34, or execution tion, 32 U.Chi.L.Rev. by of an order made administrative Currie, (1964); 535- D. Federal Courts acting board or commission under granted by statutes shall not be reasons, disagree for several We judge up- district court or thereof of which would suffice: one . ground on of the unconstitution- ality appli- statute unless the ground lies in the difference first cation therefor is heard and deter- of an on order attack between three mined a district court of on the statute administrator as such judges under title. section 2284 applied distinction ad- him. The as hand, since, mittedly on one apparently is elusive The defendants concede States, Phillips judges v. United that a court of would said three 246, 252, required L.Ed. if the judicial departments committees of character or stat- constitutional pre- “some all four had utory provision ultimate source is the questionnaire, scribed the same or even officials,” and, prescribed actions had different ones all but self-enforcing. other, grounds. no statute is all were here on similar attacked articulation, since, apart the difficulties Whatever The concession is made well be- perceptible difference possible applicabil- there is still a from other bases “single, governor’s challenge ity tween statute, the attack would be power, unique exercise” “an order made an administra- Although itself. both under a statute Garrett Lime at S.Ct. validity empowering him at- Growers concerned nonconstitutional unquestioned guard generally tacks the the national same statute or order to call out challenge “any required forcible obstruct- whose constitutional in ing of war or case judges, reasoning rea- laws or of the three the same should of the execution thereof, all apprehension apply and at on the sonable when attack is statute one necessary,” may deem the there- times other on an order issued he imple- continuing overlap administrative and the under. In either case the of evi- a--statute, at- argument likely itself under mentation of tack, dence to be is con- applied if constitutional policy which is use of siderable. judicial of efficient put way To not if in another. one pushed effort was much further way, slightly if point in different the than this United Mine Workers legisla- interpreting is Gibbs, administrator America v. application re- policy, even a local tive quires (1966), there 16 L.Ed.2d 218 where making judges; if he is three upon state inter- was an encroachment delegation, policy local action under a determining inde- ests issues by single judge. See can be tested cognizance. pendently within federal Re- v. Federal further discussion Sardino some com- Since issues raised 115; D. Bank, F.2d at serve Currie, supra, judges, plaints plainly there call three 37-55; U.Chi.L.Rev. ju- argument compelling is not the (1968). Currie, Courts 534-35 Federal D. economy dicial dissolu- that exists when panel tion of the outset would save ground the actions is that The second energies judges of the relieved two under committees of the two character Furtherjnore duty. from further to con- authority appellate divisions of the sign single judge questionnaires to a teaching of truly “local” within prospect separate ap- would entail the peals, true that It is cited. cases we Supreme one to the and the Court each regulations the committee Appeals. other to the Court of appli- directly department bear there, being who, residents through cants Rusk, In Zemel v. process seeking admission (1965), 14 L.Ed.2d 179 the Su- effect But the for them. established preme appeal Court entertained an from state-wide; ad- or denial admission judges three in a case cannot distin- we key department one mission guish calling from our own. The throughout the practice State. to lawful judges upheld three there because questionnaires Thirdly, even plaintiff passport attacked the stat- regarded ad- local properly should ground ute on the of unconstitutional action, neverthe- ministrative would we delegation; court below and Su- jurisdiction three-judge less retain as a considered, preme Court both in addi- Supreme Court, in Louis- court. tion, Secretary the contention that the Garrett, & R. ville N. R. regulations State’s under that statute 303-304, 58 L.Ed. Perceiving invalid. the situation were (1913), jurisdiction expressly upheld the before it as no different where three-judge panel nonconsti- over additional claim is a noneonstitutional validity affecting tutional statute, Supreme constitu- attack on the same attacked on orders also grounds. quoted Avo- Lime & from Lime to es- tional Growers Florida joining Growers, Jacobsen, 362 U.S. tablish that claims not them- Inc. v. cado 73, 80-81, three-judge 568 selves within statutes 4 L.Ed.2d 80 dispense does not the need for three the Garrett restated the Court judges dictum, holding for the approving while consideration of all. See in an Kurland, deciding joinder nonconsti- also The Romero Case of a that Jurisdiction, the need of Federal Some Problems did not obviate tutional claim one 73 judges constitutional Harv.L.Rev. 838-45 on the for three forego Finally, brought. fore if all the the actions were even After the wrong, ing grounds of appel commencement of the should be actions the are, questions, late do think we divisions deleted course we set forth margin,6 of in the exceedingly nevertheless, the dis which would in exercise would have raised together problems cretion, as re serious under to act Shel continue Tucker, “Although gards ton questionnaires. 364 81 U.S. (1960). single judge power 5 L.Ed.2d Schnei 231 See also is without district Smith, requiring judges, der v. in act a case three (1968). 19 799 opposite L.Ed.2d Swift & Co. v. true.” (S.D. Wickham, F.Supp. 410 230 questions The most strenuous which N.Y.1964), appeal of want dismissed objection following: made are jurisdiction, 382 U.S. you organized help- or Have ever aff’d, 364 F.2d organize ed to or of become a member (2 1966), cert. denied Cir. participated any way or in whatso- 17 L.Ed.2d organiza- any in the ever activities of three-judge court When the group persons or tion of teaches juris entire and lack heard the case (or taught) (or or advocates advocat- is at best debat diction over one issue able, ed) that the Government of the United policy three for the calls sound any any political States or or also, judges a return since decide subdivision thereof should be over- single judge re “would to a issue force, thrown or vio- overturned if the return was sult in an invalid order ?_ any lence or unlawful means only consequence erroneous, whereas affirmative, your If answer is in the jurisdiction of erroneous retention state facts below. appeal three-judge is that the court 27(a) you principles Do in the believe Appeals the Court of should be taken to underlying the form Court, Supreme an un to the rather than the United America?- States of against plaintiffs certainty (b) you conscientiously, do Can by timely appeals may protect themselves are, any you, you affirm that without to both Id. courts.” reservation, loyal ready to and mental support the Constitution V. States?_ United questionnaires in in the two The use Taking order, these in reverse subject departments re- have been objection we to see fail valid can what changes that the cent which demonstrate (b). be differs made This and Fitness Character Committees New York Constitutional oath Appellate Divi- and the Justices Knight Regents, in sustained v. Board bring need sions well aware 339, aff’d, F.Supp. concepts developing them line with 812, only L.Ed.2d complaint rights. The First Amendment phrases, inclusion two additional questionnaires 2938 attacked Civ. and a “without mental reservation” Kaimo- plaintiffs issued to Wexler loyalty. former declaration al- early had been phrase in 1968 but witz all of us is included oaths May judges, per- departments in be- cannot have taken we tered two names, you “29(a) addresses, participated “28(a) activi- Give ob- Have jects period membership patriotic inor nature in each or ties of society every association, religious, club, philanthropic, serv- social fully. you _ organization so, If of which ice? engaged “(b) you a member other than those associ- extracurricu- been If dramatic, recognized by (athletic, debat- ated with and accredited lar activities etc.) administration, colleges.” committee, club, ing, schools approximate college, amount indicate responsibility spent involved. of time why any proper appli ; reason ceive oath we while have held that the state permissibly cant admission to bar should can inquiry make into some impos it applicant’s ability cavil over it. We likewise find sincerely to take why requiring sible to see yer a future law oath, purpose can be served loyalty declare his Constitu questions, more circumscribed such as objectionable 27(b) tion should deemed and the various factual promise support throughout when a is not.7 questionnaires. contained lawyer suggestion prospective Question (a) that a should thus deleted or loyalty rephrased would fear that a declaration imprecision to remove the we prevent his to the Constitution would have noted. criticizing does acts of Government Question 26 also raises difficult a require not discussion. problem. rely Plaintiffs on cases such Baggett, Elfbrandt, Keyishian, Question 27(a) alleged to be is opinion, cited in section III of this claimed, impermissibly vague. for It is Tucker, supra, also on Shelton v. 364 U.S. might example, think that an v. S.Ct. Schneider respond he the affirmative could not in Smith, supra, 682. U.S. S.Ct. col if he did not in electoral believe distinguish Defendants in- the former as lege legislature. There is or a bicameral volving up statutes em- that set a bar to enough objection that substance ployment it, or decreed a termination of question think the be elimi we should teaching all in the field of where “principles phrase nated or altered. The underlying “particular First Amendment dictates government,” as form safeguarding concern for the of academ- phrase distinguished simpler from the freedom,” Washington, ic Haskett v. addressing ap used Rule 9406 in supra, inquiry as contrasted to the mere committees, pellate and the divisions They distinguish here. Shelton might applicant to understood an be ques- Schneider breadth or many “principles” of a lower include tions asked. Defendants assert gov essentials, democratic der than principle first instance that the remains change by methods. lawful ernment protect sound in that order to “some in- reforms, albeit drastic who favored One clearly gov- sphere terest within the might means, per through constitutional may “deny concern” a state ernmental conscientiously to an haps feel unable positions persons supposed dan- to be “yes;” yet simple format swer with a gerous might position because the be question no additional affords of space public.” used to the detriment of the word explanation and the Randall, Speiser v. 357 U.S. vague a “principles” as to create is so 527, 78 v. Gerende explana opportunity problem even Supervisors, Board question thus tion afforded. were (1961), ex- 95 L.Ed. in of the oath the defect share ample, require- the Court sustained a Elkins, 389 U.S. Whitehill a ment that candidate for office which “ engaged he swear that ‘in one being capable of Supreme found way attempt or another in the to over- to disclaim require the affiant read government by throw or vio- force to “alter” desire lence,’ knowingly and that he is not a unnec seems peaceful It “revolution.” organization engaged member an imprecise dec essary require such an Further, although attempt.” such an applicant for admission from an laration power what is of ex- within the state’s say the Defendants to the bar. necessarily power clusion is its within “subsidiary merely argue inquiry, to be the latter is intended defendants that entitled constitutional since the state is supportive of” the broader serve, protect II, Constitu- and defend” it. Art. oath also See “pre- requires President tion 1- § may develop quiry broadly, more information engaged making in con- person in fact has answer affirmative will qualify this, he free justifying to office a bar and that the commit- duct willing appellate re-With tees and the to admit. divisions not been will then has spect Question inquiry, position scope be in a to determine the truth requirement approach the disclaimers. While there is force does every this, Supreme asso- no Court decision down Shelton struck disclosed, requirement gone beyond sustaining inquiry into ciational tie organizations membership indiscriminate to be too held known to the Court Beilan v. sweep. decisions member to advocate forceful vio- Education, overthrow, of Public lent or in the Communist Board (1958); evidently Party advocacy 2 L.Ed.2d 1444 whose knowledge. Casey, Lerner deemed a matter common ; (1958) Nelson v. disposed inquiries 1311, 2 L.Ed.2d We are not sanction Angeles, County greater Although Sweezy scope. of Los (1960); 527, Kon- Hampshire, 494 234, 4 L.Ed.2d S.Ct. igsberg S.Ct. 354 U.S. 77 supra, California, Bar (1957), v. State of 1 be could distinguished sweeping 6 L.Ed.2d involving 366 U.S. as a Anastaplo, 81 legislative public re 366 U.S. inquiry In limited to not demon- employees applicants 6 L.Ed.2d 135 S.Ct. or to for admission does bar, that Constitution strate the it indicates the Court’s aversion asking a prohibit concerning a state from questions to associations for admission prospect or official a candidate The absence scienter. member ever a having respond inquiry whether he was like the bar to an Party or, as in Question deterring might Communist ef- a have organizations constitutionally case, of other Nelson fect on exercise of the right association, violent member to advocate protected known and this government. justified of the overthrow “the subordi- can when “compel- nating of the is interest State” Ques- problems most with The obvious supra, Hampshire, ling,” Sweezy Newv. parenthetical past-tense tion 26 are the (con- at at 1219 probably While the draftsman verbs. J.) Frankfurter, curring opinion of —a period relate intended these Rock, applied Little Bates test applicant’s membership, is this 4 L.Ed.2d clear; question could be made Button, (1960) and NAACP report requiring applicant as read 415, 439, L.Ed.2d membership organization that ad- in an interest in inform- state’s The overthrow of the Government vocated ing prior associations itself would in 1860 but now the United States candidates for the bar with subversive organizations, syllable every the Constitution. defend adequately protect- can be question corrected clari- should be by question narrowly ed phrased. a more teaching organization’s fy or County Angeles, See Nelson of Los advocacy must have of violent overthrow n. 2-3 & applicant’s mem- time coincided cannot object. bership correction to which we —a would the defendants conceive Question Plaintiffs also attack question next is whether the issúe Department 31. In the First this reads: where to cases further limited must be teaching any your or Is there applicant ad- incident in life not knew they foregoing vocacy. questions called for not assert Defendants do constitutionally applicants exclude favorable detrimen- could bearing your shown; tal their contention character or fit- this unless - above, they rather, ness? If the is is noted answer their in- permitted “Yes” state the facts. frame should Department Iy disagree the words “fa- Canons, Second with various currently or” are omitted. Plaintiffs con- being vorable revised, and still de- tend has a serious in catch-all agree serve admission to the bar. We light effect, especially in position terrorem with that but not with the con- application: plaintiffs directions at the head clusion draw from it. There is vagueness no here of the sort we found statement made under This Question (a); fully who has Applicant’s oath. curately failure and ac- read the just Canons knows what stand- fact infor- disclose being ards he is asked If by any about. he dis- mation called for particular Canon, sents only say he need application denial result explain why. so and We have admission, shall been cited no evidence dissent the discov- before have been admitted on a reasoned basis would bar admission. ery thereof, revocation practice law. license Finally, plaintiffs generally attack ap agree. and the We pellate The committees practice of conducting committees to frame divisions should be able personal ap individual interviews with specific questions adequate to elicit plicants, which, among things, other need; they indeed information questions posed “on the basis of the demonstrated applicant’s question answers to the plaintiffs excessive consider an what allege scope naire.” Plaintiffs that the regard. ability find no inter We in that questioning of this so broad sometimes sufficiently compelling est of the state as to constitute an unwarranted invasion engage in the require applicant to to soul-searching an applicant’s personal political into the past life de entire of his privacy. plain We do not understand ****8 Question by 31.* manded deny personal to tiffs that a interview different view with We take a permissible very helpful can abe aid requiring respect question dis to the last judging to the committees in for fitness opinion: in the text this cussion Rather, admission to the bar. their com you (a) the Canons read Have plaint goes scope of interviews adopted the American of Ethics question conducted at a time when Bar Associations? York State inquiries naires included since deleted disapproved or here no us. We have conscientiously en- (b) you Will scope to that your reason assume as professional to conform deavor inquiry - to them? committees’ is contract conduct written ed, adjustment there will a not be similar (b); plaintiffs objection con- is to spoken questions.9 may in the focus of their applicant conscientious- tend an that great expense. argument us, W. It before David trouble and is not 8. At Presiding Esq., Peek, for ex- Justice unreasonable them to save this former upon drawing applicant’s pense Appellate First for De- Division reply personal knowledge. partment, appeared for counsel briefs who as committees, plaintiffs complain requirement, contend- while of a al- the character innocuous, legedly ing ex- to be made the Committee on Question 31 Char- pressed personal Depart- it and the dislike for acter and Fitness of the Second any ment, opinion “be would not that that authorize there question great 31.” of his Local allow to-do about Clerk Board to mem- bers and staff of the Committee challenge 9. Plaintiffs 19- Questions also Appellate Division have unrestricted concern- information call for Although entire we access file. registration ing applicant’s for Selec- would entertain considerable doubt about discharge rejection Service, for and tive propriety this, passed we have not charges military service, from alleged it was since military during complaints We do service. complaints or affidavits. deny plaintiffs that all not understand record, which, complaints matters do raise about these are requirement appli- however, could obtain the committees the committees’ prove unfounded, they may apply to us VI. for relief. consider now must We shall We therefore hold all motions un- light disposition in appropriate ninety days date, til such not later than we foregoing While discussion. entry opinion, of this when against injunction use power issue an for report counsel the defendants shall Questions 26, questionnaires until writing action, any, appel- what if rephrased 27(a) omitted or report late divisions have taken. Such resumption against of use counsel; upon plaintiffs’ shall be served discontinued, have been twenty days they may, thereafter, within oc see, g., no find immediate fn. we e. advised, if appropriate so file serve and Although doing “the so. casion papers respect to what re- further grant injunctive power relief court’s any, lief, they required; if deem the de- illegal con of discontinuance survives shall fendants answer within fifteen Co., duct,” W. T. Grant United States v. days. opportunity If counsel desire 629, 633, 97 L. argument, assign for further a we will required court is not Ed. 1303 date. it, demonstrates. that ease award It is so ordered. committees the character Counsel argument emphasized “these MOTLEY, Judge (concurring District about are not stiff-necked Courts dissenting comity part, part). thing.” Considerations suggest fellow-judges respected plaintiffs In these consolidated cases oppor reasonable should be afforded challenge, on First and Fourteenth tunity conclusions our reflect grounds, Amendment certain New York perhaps obviate take action statutes contain criteria injunction. stu Law for an occasion determining eligibility for admission chill serious suffer dents will not provides bar.1 One these statutes interval, the ulti during when this brief that an shall be admitted also We believe result is so clear. mate admitting that he the court is satisfied plaintiffs have the three who that if “possesses general fit the character and re and passed examinations the requisite attorney for an and coun ness questionnaires should the to fill out fused Law, Judiciary selor-at-law.” New York 27(a) Questions and to answer decline provides The that 90. second statute § Question limited as and answer if, applicant in ad shall be admitted organizations known membership in satisfactory dition, he has “furnished advocating teaching or to be then them proof he the effect that believes by force Government overthrow of the United the form violence, they find obstacles not would loyal government.” and is to such States Rules, expectation should way; our and their York Practice Law New Civil Municipal Court, from affidavits and submit Camaro v. cants obtain and good (1967), persons attesting to their third forms of The so the issue character. cases are remote moral those undergone recently radical not warrant discussion. affidavits have Department’s First The curtailment. statutory regulatory says nothing home and form about The York current procedures governing affiant, by provisions De- ad the Second and visits require partment’s the affiant bar to those mission to the are similar does applicant’s generally most has visited states. See that he to aver Examiners, say merely Bar whether Schware v. Board of but home provision as- is 1 L.Ed.2d the latter While has. ho appli- (1957) Konigsberg Bar an invasion to be serted California, privacy personal forbidden cant’s Connecticut, 1 L.Ed.2d 810 Griswold 1678, 14 L.Ed.2d preme Court, adopt shall such additional Rule These statutes are attacked they may respect ground rules as deem fit with on the that are unconstitu- requirement resulting applicant tionally vague broad, to the good prove gen chilling upon moral character effect exercise of First eral fitness.6 students Amendment freedoms law awaiting admission to the bar and those I. Statement the Facts having passed after the written examina- recognize In order to the full dimen- judge, applying required. tion This posed sions of the issues constitutional vagueness concepts and broadness here, necessary closely it is to examine 1) holds: statute is constitu- first foregoing the manner which stat- interpretation, imple- tional, but interpreted, imple- utes and rules were application mentation and the defend- applied by appellate mented and divi- respective ant their character courts and sions which are here defendants 2) unconstitutional; committees respective their committees. character is unconstitutional second statute implement rule, Appeals To the Court of implemented interpreted, its face and as prepared defendants instructions applied by defendants. persons furnishing and the af- affidavits There is a rule of the New York Court forms, copies fidavit at- which are Appeals implements the first which original tached to the and amended com- every by providing applicant statute plaints in the second action. First produce must the character com before Department’s instructions advised affi- he mittee and file it “evidence that ants that their affidavits must “state possesses good moral character knowledge opinion) (or in the general requisite attorn fitness for” an applicant person affiant is a ey.2 [Emphasis must This Added]. good character”, set moral and must reputable shown two affidavits upon “in af- forth detail the facts which city county persons residing knowledge ap- opinion of or as to fiant’s resides, one of whom plicant’s moral is based.” character attorney.3 practising Accord must be a “good There is no definition of moral ing rule, to the the affidavits “must state language of the stat- character” and the knowledge is, ute, general requi- “character and fitness good affiant, person moral char attorney and counsellor-at- site for an detail acter and must set forth in law”, addi- is not used. The instructions knowledge covering facts tionally “Affidavits adviséd: Added], [Emphasis based.”4 family and home life should characterize “good is not de term character” moral is no further home There environment.” provides fined. The rule further amplification of this instruction. conclusive, not be shall such “affidavits Department instruc- combined Second may [admitting make court] and the entitled form and tions with affidavit through inquiry and further examination for Affidavit Character it: “Form and Fitness its Committee on Character form The affidavit Home Life.” [Emphasis Added]. or otherwise.”5 to be contained a series ques- Finally, provides ad These the rule the affiants. answered unconstitutionally ap mitting tions four courts, which are the demonstrate vague in which and broad manner pellate York Su- of the New divisions rule reads: Id. Rule VIII-4. This Appendix, 6. Judiciary Law, 2. York justices Appellate Division “The of the VIII-1, New York Rule Rules adopt department for their in shall each Appeals of At- Admission Court torneys. respective departments additional gen- ascertaining the moral rules for 3. Id. jus- applicants to such fitness of eral proper.” seem tices 4. Id. VIII-2. Rule 5. Id. (d) Judiciary statute, Law Do such visits still §

first continue? If not, Appeals cease, in- Rule VIII was did when the terpreted, applied implemented what reason ? exemplars fol- are as defendants. you 13. Have on such visits met lows: and conversed with: your briefly associa- Describe 7. (a) Applicant; setting applicant, forth tions with (b) family The members of his or began, in- such associations how all, If not household? with with (business, in what activities dicate which members? recreational, scholastic, cultural, ath- (a) persons 14. With what has otherwise) you letic, have or social during period lived each applicant. It is not participated with your association his him in with merely repeat a sufficient answer home? parentheses, but words above (If during period periods covered particular should activities the specified. by answer, applicant has lived with family, enumerate the members your conclusion as 9. What during family If, period. each (Reserve applicant’s moral character? during any period association, he question) for next details apart family, has from his lived you what in detail forth 10. Set persons, any, enumerate the if with your as- personally observed have during he whom has lived each such leads applicant which with sociations you period.) forth under set to the conclusion (b) persons With what live does he among other specifying, present time, at the if known that be person- things, qualities moral you? applicant’s con- observed traits al you 15. forth detail what Set toward duct, attitude his usual personally have observed as to he associates. whom those with qualities moral and conduct applicant’s you Have visited 11. applicant’s family members home; (a) parental persons other with whom he lived: any; home, if (b) marital (a) home; parental (c) any place other of abode ho.me (b) applicant may any; home, had have in marital (c) (answer place sub- “Yes” or “No” each home or division). applicant may abode have had. approximately, (a) often, you say applicant’s do How What towards, during week, year, month or conduct family of his each members you parental, during pe- mar- or household each visited your place him in or other home or of abode riod of association ital applicant? home, present, and at if associa- (Give full de- tion still continues? (“Frequently” or other or “often” tails). is not a satis- indefinite statement factory fully any other facts State most Note that in answer. your knowledge, or which within frequent less cases visits will you your information, have Q. which mentioned than the contacts opinion any bearing ap- the have on above). plicant’s fitness moral or character ap- (stating During years (b) what practise law, to or would which dates)? proximate helpful in deter- Committee the mining (listing applicant’s (c) them character At what addresses [Emphasis fitness. specifically) Added]. ? filed, (c) any place these actions were After home or other applicant may the instructions forms and abode affidavit had? have changed. Department’s First were you 10. How often have visited the greatly shortened and has form was parental, marital or home or regarding affi- omitted the instructions place applicant? of abode of covering but asks the davits home life (“Frequently” or “often” or other affiant to state: not a indefinite statement is satis- Length of affiant’s “6. and nature factory Note that in most answer. applicant: acquaintance with frequent cases less visits will be (a) Q. 6, applicant; Residence than above). contacts .mentioned (b) applicant whom Persons with affiant). (if Missing form, again, known to lives is definition terms “moral character” appli- as to 7. Affiant’s conclusions statutory language and the is not re- cant’s moral character: ferred to therein. upon knowl- 8. Facts affiant’s which edge applicant’s affidavits, opinion or as character addition authorized, judicial department, moral character is based. each as pur appointed has a committee for the Again, is term character” “moral pose making investigation.7 Each statutory language not and the defined committee is known as Committee incorporated. particular Character and Fitness of department. changed Department Second To committee enable “Form the title of its form to read: investigation, make its another statute and Residence.” Affidavit Character subject committee, authorizes the approval ques- It has omitted some of the above justices appellate following requests in- tions but still division, prescribe “to and from time to formation : ques time amend a form of statement briefly your associa- “5. Describe tionnaire on set which the shall setting applicant, tions with forth all the re information and data began, forth how such associations quired by appel Committee and (busi- in what activities indicate justices.”8 late division Two other stat ness, scholastic, cultural, recrea- juncture. utes must at this be noted One otherwise) athletic, tional, social provides “[ujnless that, or otherwise you appli- participated with appellate division, person dered no answer cant. It is a sufficient practice shall be without a admitted merely repeat the above words proper certificate from committee particular parentheses, ac- but carefully investigated it has specified. tivities should be character and fitness that, respects, in such he is entitled ap- your as conclusion 7. What is to admission.” The other is the statute (Reserve plicant’s moral character? initially second statute referred to question). next details for provides that, person receive “[n]o shall the facts detail said certificate from committee and knowledge opinion your as person practice no shall be admitted to * * applicant’s character is based. attorney *, he shall unless satisfactory proof furnish to the effect you applicant’s 9. Have visited * * * that he believes in the form of home;

(a) parental of the United States and any; home, (b) loyal government.”10 marital to such and Law 9. 7. York Practice Id. New Civil Rules, Rule 9401. 10. Id. Rule 9406. 8. Id. Rule 9404. Pfister, foregoing also, stat- Dombrowski v. See In accordance pre- 479, (1965). mandates, 1116, 14 utory L.Ed.2d defendants forms, These

pared application forms. forms, original questions In the “Questionnaire State- and known as ment”, Department’s form and of the First questions, all presently contain questions and of the were 32 and 36 other other- unless must be answered objected specifically First and to on addition, “every ques- indicated. In wise grounds. Once Fourteenth Amendment every question must part of each tion and again, the full of the constitutional flavor though answered, even the answer be negative.” appreciated cannot assault without application admon- form The scrutiny close of how the committees applicant: “This is a statement ishes the interpreted and set about their task applicant is fur- oath.” The made under implementing applying the two basic that, fully and ac- “failure ther warned containing for ad- statutes criteria curately any informa- fact or to disclose following ques- mission to The the bar. by any question result tion called for “danger tolerating, tions in attest application for in the ad- denial freedoms, the area of First Amendment * * * mission, applicant shall have been or if [regulatory] the existence thereof, discovery admitted before susceptible statute e. C.P.L.R. [i. 9406] practise the revocation license to sweeping improper application” law.” Button, 415, 433, NAACP v. 328, 338, (1963); 9 L.Ed.2d 405 application two forms in There are Pfister, supra: Dombrowski actions; in these one form that volved Department First by the on Character and used Committee (A) any 19. Are there or favorable Department and the Fitness of the First life, your unfavorable incidents Department’s Com the Second school,college, school, law whether complaints in mittee. these When otherwise, or business not called for forms, filed, actions these unknown were questions contained plaintiffs, just to May had been amended in questionnaire your or disclosed object questions 1968. Some of answers thereto? original complaints had been ed so, If list them. changed. or either deleted June suits, just prior filing of these you participated in ac- Have 20. already begun Department First had patriotic na- tivities aof religious, distribute its amended form. After these philanthropic, ture or filed, Depart actions were Second social services? began ment to distribute its amended so, fully. If filing applicants. form After the addresses, names, (A) Give complaints, these originally objected still other membership period objects of to were deleted association, every club, each the amended forms.11 net effect you organization society changes however, deletions, a member. been are or have unchanged to leave Four First and challenge teenth Amendment stat Department Second statutory utes. “The substance you articles Have written regulatory complex remains and publication? * * * [plaintiffs’] from the outset circumstances, so, ag give If has been claim basic publication, pub- Keyishian the date name application.” by grieved subject University and the title lication Regents of Board of (Include in- of the article. matter York, State of relative to articles formation L.Ed.2d day. July 16,1968 second action the next filed first action 11. any publication so, or col- school If what extent. magazine.) lege paper or Department Second now, you you (A) or have Are 36. (a) you pledged 35. Are now or (including any time ever been at you pledged ever been to aid high you during attended which time school, college changes effecting in our form of school, and and law government by force or violence or during you including the time any other unlawful means? any engaged military or service (b) you you Are or ever now have activity) community member of a any party been a member of ganization or or- any club, association, society or- or purpose created for such ganization political party? [Em- or propagandizing or for the or the phasis Added]. furtherance thereof? name, (B) yes, give If answer be (c) yes, If answer is state the name objects of and address and each party organization. or every association, society club, such (d) you now, you Are or have ever organization party or or been, member a of the Communist period your membership Party, you or have ever en- been your position or therein. title rolled aas member Commu- Questions the First De- 23 of Party? nist partment’s form 35' of the by question 24 of prescribed The oaths objected by plaintiffs. other were also ques- Department’s the First form These read: object- other were tions 33 and 34 Department First ques- Department’s ed to also. The First tion, virtually identical with you (A) you Are now or have Department’s question read: Second or ever been member of a affiliated (A) prin- you any organiza- Do believe way any gov- * * ciples underlying the form of groups tions or listed as subversive ? ernment United States Attorney General of the Unit- rider, on in not than 100 less [Emphasis ed States? Added]. prin- words, you those believe what (B) you paid to, Have contrib- dues ciples (Handwritten) to be. any way peti- signed uted in or (B) you conscientiously organization and do any Can tion or such are, any you you group affirm that without ? reservation, loyal mental to the Gov- your yes If answer to either sub- * * ? ernment United States give question, division of this The June 1968 amended forms deleted following information: 19B, following questions, supra: the 21(a) organization Name and address of (First Department) * * * group (Second Department). The amended you When became a member or remaining forms revised the First De- * * * it affiliated with partment questions as follows: your Period of association or con- Question 19(A) was revised to read: * * * nection with it your “31. Is incident in you there why How and became asso- * * * foregoing life not called ciated or connected with questions which has favorable your you why How severed bearing your * * detrimental char- it, you connection with did acter or If the fitness? answer is you participated 23. Have ever “Yes” state the facts. any way whatsoever in the activities organizations groups specified of ? time No limit is as to this [Emphasis question. added]. error, 21(B) to read: defendants advised the court revised

Question was following questions had been deleted dis- you been (b) ever Have “29. from both amended forms: or or- suspended, expelled, ciplined, club, any (a) you participated resign asso- ac- in Have dered organization? If society patriotic ciation, public or nature tivities of a or “Yes”, philanthropic, religious, or your state or social is answer ? services facts. given. so, fully.

Again, is If limitation state no time (b) (B) engaged you Questions 22(A) and were If and in extracurricular dramatic, debating, (athletic, activities read: revised to etc.) administration, committee, club, organized you or ever “26. Have helped college approximate amount indicate organize a mem- or become spent responsibility in- and way of time any participated in or ber any volved. in the activities whatsoever organization persons group addresses, names, (a) or Give (or taught) or advo- membership objects period teaches of and advocated) (or every association, Gov- club, cates in ciety and so- each any or organization you the United States ernment of or are any political subdivision or have a member than been recognized overthrown thereof should be those and associated with by force, colleges. violence overturned and accredited schools means? unlawful good In affidavits of addition complete moral character and answers affirmative, your If answer Questionnaire questions in the and State- [Emphasis below. facts ment, practice, applicants, as a matter Added]. personal appear must for a interview be- (B) Questions 24(A) were revised and fore a member of Committee on Char- read: During acter and the course of Fitness. prin- (a) youDo believe “27. interviews, applicants, these as author- gov- ciples underlying form of VIII-2, Appeals ized Court of Rule ernment of the United States “good questioned their further about America? general fitness”, moral character and conscientiously, (b) based affidavits and answers you and do Can Questionnaire are, you Plain- you, without Statement. affirm that alleged reservation, loyal tiffs that these interviews often mental polit- inquiry applicant’s involve into ready support the Constitution activities, speeches, [Emphasis ical beliefs and con- the United States? personal private duct of a nature. Added]. Only general allegations denial these the re- revised forms amended has been made in filed the answers maining Department questions as Second defendants and no other denial of Questions (principles and 34 follows: underlying allegations validity of these been loy- form of presented. alty) the First were to read as revised immediately It also is essential to a full understand- Department’s question ing of the claims (pledged constitutional made to aid challenges change government) here know it is re- who who form challenge why these Department’s statutes the First vised to question read preced- 26, supra, immediately made. connection must we know why plaintiffs who the are and ing question 27. here. After commenced the suits were Plaintiffs the first case are the Law had amended forms after the June 1968 Rights Council, distributed, Students Civil Research in tacit confession

been organ Department. Two of individuals students. law Inc. and three non-profit mem have never never been arrested plaintiff is a izational any suspended organized the from under been dismissed or bership corporation university. school or One has been with never of Columbia District the laws of suspended City. Its York or dismissed school principal in New offices 1) “non-parti university, he has objectives but been arrested principal are: analysis distributing Albany, the in research, study of handbills and san Georgia prejudice in the of 1963. Two of eliminate summer law with a view plaintiffs graduates the discrimination; human are of to defend New York and law; University grad- and to and one rights Law is a School secured and civil University uate reached of the Columbia conclusions School make the 2) “pro ; presently through Law. One an assistant and such research” professor rights program stu law at Columbia. Another where a vide civil plaintiff of the may study members a member and assist staff of the dents with University rights legal Columbia Center on profession in the civil Social of the Policy indigent, poor Welfare dis and Law. One has a mas- field on behalf degree, litigants ter’s in tressed, on underprivileged law. membership rights The cases.”12 civil Guild, The Columbia Law Students students, of law consists Council organizational plaintiffs, one of the in- approximately in schools 60 law attending cludes law students Columbia country. chap throughout There are University School Law who have not City organization in the of the ters yet graduated from law school and who Brooklyn schools of York the law New yet steps gain have not taken admis- Fordham, Columbia, College, New sion to pursuit the bar other than their Membership these in York Universities. required of the studies. law These stu- chapters persons resi who are includes apply dents intend to for admission to First or Second Judi dents of either the upon completing the bar law school. The Department either cial who have organization also includes students who apply applied mem for or intend completed have school law and who have bership in in York Bar those the New applied for admission to the bar. The departments. sues on behalf The Council organizational plaintiff in includes complaint alleges The of these members. membership law students from the organization can work City. various law in schools New York It may freely students succeed if law chapter is a Lawyers of the National engage organization’s activities, in the organizational Guild. plaintiffs Both subsequent fear uninhibited non-profit organizations are devoted in delay prac admission or denial of promotion main to the reform, of law prior tice because involvement with facilitation jus- of the administration organization its activities. tice, protection fostering plaintiffs students individual are all law rights civil and liberties. plan apply who for admission to But, specifically, more as related to the graduation New York Bar case, issues raised in this the Law Stu- from law school. dents actively Guild seeks to involve its members in companion rights, the work of case civil Plaintiffs are civil liberties, poverty organizations. three have taken and individuals who Lawyers Guild, National passed required examination with which the written both organizational plaintiffs applicants affiliated, for admission to New all adopted organizational plain- York two resolution at its bar and national con- plaintiffs July places par- tiffs. individual vention in Two 1968 “which Department emphasis reside the First Judicial ticular concern of law- yers Vietnam, draft, and one resides in Second Judicial with the war Complaint, paragraph 12. Second Amended They plainly with whether concerned poverty and of the racism, crises employed in deter- political alleged tests ghettos.” It is the urban eligibility. mining Chap York complaint that the New problems to these solution ter “seeks summary have moved for Plaintiffs change in the structure through radical answered judgment. Defendants political legal, and eco nation’s is no There moved to dismiss. and have alleged system.”14 It is further nomic genuine material fact issue as to objectives, that in connection including alleged complaint, Chapter York the members respective charac- used many engage engaged will “have prior the time to and at ter committees traditionally undertaken not activities question- the the were filed and suits As associations.”15 other bar since the and revised naires as amended alleges that action, complaint the first Plaintiffs of these actions. institution organizations in their succeed can these judgment as a matter of are entitled objectives students program if law and, injunction consequently, to the law they engage in activities such feel free to Educa- v. Board of seek. Clemons subsequent by the fear of uninhibited (6th Hillsboro, F.2d Cir. tion of 228 853 delay practice of admission or denial 1006, 1956), cert. den. 350 U.S. organ these of affiliation with because Henry 868; L.Ed. v. Greenville 100 organizations these Both of izations. (4th Airport Commission, 284 F.2d 631 members of their sue on behalf likewise Beaty, 1960); Cir. United States 288 v. applying applied will be or who who have (6th 1961); F.2d Cir. Burnside v. 653 for the bar. admission to 1966). Byars, (5th 363 F.2d Cir. 744 plaintiffs organizational All three II. The First Statute standing on behalf to sue have the same the On merits of their members as found the the which of rely. they dispositive case, A. A. C. P. the case N. court finds which of this on Alabama, plaintiffs prevail.16 plaintiffs must 357 U.S. If (1958). brought look had 1488 A close eases a L.Ed.2d these decade more ago, they e., plaintiffs prior Konigsberg makes clear that not i. the first California, law of here whether a stu- State Bar concerned with 353 U.S. money dent has stolen em- 77 it who S.Ct. L.Ed.2d is they ployer his mother or who has murdered doubtful could found have sufficient precedent may, nevertheless, to the bar. be admitted with which convince court delay Complaint paragraph Amended 7b. admission to the bar without providing charges, for notice a full 14. Id. hearing pres- counsel ent, opportunity 15. Id. for confrontation and specification examination, cross and 1) findings. the made, Plaintiffs also claim that: claim latter was personal main, affida- interview and character the in Willner v. Committee on regarding Fitness, re- life vits home and Character quired rights violate secured the 10 L.Ed.2d Fourth, Fifth, Ninth Ifourteenth Plaintiffs claim that defendants have required Amendments; 2) oaths comply taken action with compelled Fifth violate disclosures Willner decision. That case held 3) Amendments; procedures lacking and Fourteenth defendants’ in due statutes, rules, regulations practices process they ap- provide since failed to plicant hearing Amend- violate the Sixth and Fourteenth with on the reasons right guarantee Although the ef- ments’ for denial his admission. reply and the in- fective assistance counsel did defendants serious bar; 4) dependence charge, admission it seems that a determination comply proc- procedures do not with due this issue should await a case in which guaranteed by process procedural Fourteenth ess of law the ly due issue clear- permit denial Amendment in that raised the facts. applied Today, pellate he has division to which validity their claims.17 person pos- Board be satisfied that “shall however, after Schware a decade general fitness Mex the character and sesses Bar Examiners of ico, attorney requisite counselor L.Ed.2d Konigsberg at law.” (1957) first lurked, Konigsberg case, case, issues identical In second in which jewel- sparkle plaintiffs’ L.Ed.2d briefs intervening years (1961) good stand- precedents of the character moral like Waving analogous again clearly contexts. as it had been ard was involved high Konigs- freedoms the first their case and First Amendment Schware cases, case, supra. one —especially berg what none of these to believe freedom association, however, will, “good moral character” freedom of plaintiffs standard, per se, right privacy one’s into drawn home— lawyers vagueness grounds carry on the the banner here infringe against time, protection same since broadness. And vagueness won concepts ment areas as been broadness (especially teach employees yet Supreme applied have not been 479, Tucker, ers), 81 364 v. U.S. Court this standard or other bar Shelton 247, Cramp (1960); L.Ed.2d 231 5 admission standard applied recently have been S.Ct. Instruction, 368 U.S. re- v. Board of Public and oaths statutes (1961) ; 278, 275, public quired persons seeking 7 L.Ed.2d 285 82 of licenses S.Ct. Bullitt, 360, Baggett employment assuming 84 S.Ct. 377 U.S. v. office. (1964); 1316, supra; Smith, Cramp Elfbrandt 377 v. 12 L.Ed.2d Schneider v. 11, 1238, Russell, Instruction, supra; 16 v. 384 U.S. 86 S.Ct. of Board Public Keyishian (1966); Baggett Bullitt, v. Board supra; v. v. Elfbrandt Elkins, Regents, Russell, supra, supra; Keyishian of Whitehill v. of v. Board 184, 54, Regents, supra; Elkins, L.Ed.2d 389 19 professions U.S. v. Whitehill supra. (1967); licensed 228 seaman, v. as merchant Schneider case, supra, Konigsberg second 682, Smith, 17, 19 L. 390 88 U.S. S.Ct. 1001, at 366 U.S. 81 at Jus-Mr. S.Ct. (1968); Negroes, Ed.2d NAACP v. 799 Harlan, writing majority, tice for the Legisla Button, supra, v. Gibson Florida pointed validity out that the re- of Investigation Committee, U.S. tive quirement applicant that an for admis- (1963); 539, 83 9 L.Ed.2d 929 S.Ct. proof sion to the bar bear the burden of Rock, 516, 80 S. Bates v. Little “good moral had not character” been (1960) ; NAACP Ct. L.Ed.2d question drawn into He there. also'noted rights Alabama, supra; other civil requirement that the could not “well be Pfister, supra; advocates, Dombrowski v. question”, citing drawn that the fact Secretary Communists, Aptheker requirement such a exists in all State, 1659, 12 L. U.S. question states. But there was drawn (1964); veterans, Speiser v. Ed.2d 992 Randall, right put upon of the state to an 2 L. U.S. applicant proving the burden of that he (1958); population Ed.2d gov- had not advocated the overthrow of general, Connecticut, Griswold by ernment force and violence. In this 14 L.Ed.2d 510 connection, pointed Mr. Justice Harlan Konigsberg challenge out that did not statute, by plain- constitutionality The first attacked California stat- grounds vagueness tiffs on the and ute which forbade certification for ad- broadness, applicant provides mission the bar those so ad- who passed majority held, however, who has the written examination vocated. The ap- proof should be admitted that the to the bar if burden on this issue Note, Inquiries Bar, Survey Be- Into The Political To Admission. The 1 Colum. Applicants (1967-1968). For liefs and of Hum. Rts. L. Activities case, applicants anti-commu- put upon was an but not been had private urged the nist creation upon connection who in this the state and communism. a com- armies to combat not obstruct could inquiry Supreme standards first into lawful mittee’s Court Even refusing Sckware, ques- case, supra, to answer Konigsberg admission meaning Konigsberg refused agree upon to an- had tions. did “good he had been character”. swer the whether moral words Party acknowledged on the of the Communist member There the Court ground pro- ambiguous” standard, Amendment “unusually the First “can answer, al- him in his refusal tected unlimited number be defined an almost though had never ways” dangerous swore that he ad- he instru and can be “a government by discriminatory arbitrary vocated the overthrow of ment for disagreed majority right practice force. denial of the law.” Konigsberg’s Amendment claim. first First In the at 728. balancing Using test, majority assumed, case, held Konigsberg the Court having deciding, purposes law- that “the interest State’s without yers proper in its are devoted to the law who definition was that case that sense, including counsel, broadest proposed the one the state’s provisions, pro- e., respect “honesty, substantive but also its i. fairness and change, clearly orderly rights cedures laws of others and for the outweigh nation,” sufficient minimal effect the state and pains free association” occasioned took 77 S.Ct. at 728. compulsory political party point disclosure of “neither the definition out that membership good proposed in that case. moral [of character] appearing counsel in Cali nor those therefore, We, review here the first equates political fornia cases unorthodox time the moral character standard membership' political beliefs or lawful bar admission standards in- parties moral bad character.” with vagueness light volved here in the 263-264, The U.S. at 77 S.Ct. at 728. high concepts and broadness which the pointed out Court also California applied Court has to other First Amend- “ ‘good appeared cases moral define Konigsberg ment since cases the second prov in terms of an of character’ absence case, the obstruction reference to without en his conduct or acts which have been there. balancing used test rule or the torically of as manifestations considered ” “good has turpitude’ character” moral ‘moral at 77 S. term The Frankfurter, York courts Mr. defined Ct. at 728. Justice not been however, opinion not of concurring have for defendants in his and counsel “general supra, term any Schware, offered definition: definition. fered profession charged one case “From defined a with such has been fitness” “ * * * ‘general responsibilities words there must be exacted as follows: truth-speaking, a man’s qualities those of rather a have do fitness’ life, family life, high honor, granite general experience his discre sense tion, ex associates, or other his fidu business the strictest observance of his reputation general ciary through and the perience, responsibility, that have Brennan, App. centuries, compendiously Application out been like.” ” (2nd as ‘moral N.Y.S. described character.’ Div. 1930). case it does at defi Dept. And one These disqualified are, obviously, subject nitions appear an still alia, pursuant vagueness grounds, grounds, political attack on inter but on criterion, Appli “general qualities least some fitness” define of those to the App.Div. might lawyers.18 Cassidy, 51 which be demanded of cation of 1944). (2nd Dept. In that Professor Walter Gellhorn Columbia N.Y.S.2d p.

18. Id. at Court, suggested that the has stand A Law U.Pa.L.Rev. 67 School question may guessing assessing the character of bar ard leave applicants meanings. conduct rele as to “dishonorable its This as is referred to good vagueness.21 occupation” Examples rather than conventional vant Question this are few New York revised “moral” character.19 which applicants your have been re reads: “Is cases in jected there incident in grounds support foregoing life not ques lend on character called for tions as as Mr. Justice Frankfurter’s well favorable or detri bearing your mental view.20 Professor Gellhorn’s on character or fit ness?”; Question 27(a), and revised su any event, clear that a it seems stat- pra, you which reads: “Do believe utory requires aas framework which principles underlying govern the form of to the bar that standard for admission ment of the United States of America?” applicants possess the “character and Baggett Bullitt, supra. cf. general requisite for an attor- fitness Secondly, ap ask the ney”, although vague, vague, in is not so plicant information, for too much light foregoing definitions and cited, supra, having as those as been long many application proper its by defendants, asking deleted for a cases, list face as be unconstitutional ing membership organizations in all ground vagueness. on the detailing and a of activities in each over therefore, must, examine the man We period years, leaving indefinite good ner in moral character which the person questioned guessing construed, implemented statute has been relevance of what is asked. This is one applied by the defendant courts type Tucker, of broadness.22 Shelton v. respective their character committees. supra. example Ques Another of this is Ap With the statute and Court of tion Department’s 9 of pres the Second guide, peals Rule VIII as adopted vague defendants ent you affidavit form: “Have visited overly broad applicant’s (a) parental (b) home marital regulations procedures which have (c) any home place other home or sweeping inquiry in a resulted broad and applicant may abode have had?” background applicants. into the bar Finally, question may a define care required applicants These to have been fully seeks, the it information such as vague questions answer are which Party, membership in the Communist broad in constitutional violation of but constitutionally pro cover both rights, Smith, supra. cf. v. Schneider unprotected activity; tected this oth out, pointed As writers the terms type er vagueness actually of broadness is called involve sometimes broadness Note, problems. three related Void applies overbreadth.23 overbreadth Such Vagueness Supreme Doctrine present Question 26, supra, relating Gellhom, 19. Freedom applicant’s W. Individual college dismissal Governmental ISO misconduct) Application Restraint ; Cassidy, 282, App.Div. 268 51 N.Y.S.2d 20. In the the New York cases decided rehearing, App.Div. 1046, aff’d on applicants courts in have been 840, aff’d, 63 N.Y.S.2d 296 N.Y. barred, it in each the con- is clear (1944) (admission 73 N.E.2d 41 denied duct the basis for refusal to admit made urged applicant because creation has conduct relevant been dishonorable armed units forceful overthrow of e.g. Peters, legal profession: Re the government made inconsistent state- App.Div. 607, 225 N.Y.S. aff’d indicating veracity). ments lack of rearg. 250 N.Y. 166 N.E. de- nied, (1927) N.E. 252 N.Y. Note, Survey L., 21. 1 Colum. of Hum. Rts. (admission of disbarment denied because [pp. 54-55, supra] at 16. footnote Greenblatt, state); in Re another Id. App.Div. (1938) 391, 2 N.Y.S.2d (admission misrepre- because Id. denied sentations to character committee about Pfister, supra; organizations Apthe- ad- membership Dombrowski cf. in government Secretary State, supra. force. ker v. Mr. vocate overthrow make Supreme decisions Justice Black’s incisive observation Recent Court dissenting opinion Konigs- abundantly that neither Com- the clear second berg apposite membership every per- Party case is “If munist here: deny lawyer membership son admis- who wants to be can used to a be be showing required a account for his sion without associations bar organiza- prerequisite aas admission into knows practice objectives joined law, only unlawful safe course for tion’s “ desiring acquired ‘specific intent’ organiza- those admission seem to with or has would illegal scrupulously be to avoid association with further the aims supra; Key- organization Russell, any- that advocates tion.” Elfbrandt v. thing somebody might Regents, supra, possibly cf. all at ishian v. Board of Aptheker State, supra; against, including Secretary groups whose activi- Washington, F.Supp. constitutionally protected ties Haskett v. under (D.D.C., 4, 1968). even the most Dec. restricted notion of the 73-74, First Amendment.” 366 U.S. at regulations adopted Consequently, the S.Ct. at 1019. by defendants, e., forms i. the affidavit cited, It is all the clear from questionnaire, to meet fail and the applying at statutes applicable to state precision standard here, improper there has tacked been touching upon regulations Amend First political applicant’s beliefs focus enun freedoms. The standard ment improper use of associations and Supreme in NAACP Court ciated determining political test admissions a Button, supra, ruled where Court political an unlimited Such bar. statutory permissible that “standards vagueness pur political a test focus and use of area of free strict in the “good stand a moral character” suant to at expression,” at Supreme Court’s ard foreclosed regulation “[p]recision of and that Schware, supra, Court decisions. area so in an be the touchstone must “Obviously could said: closely touching precious free our most merely a he was excluded because at 340. doms.” 371 at Negro Republican or a or member of recently, this reiterated Court More particular church.” by quoting pas ruling Keyishian, there made at 756. As sage “Because from the Button case: clear, applicant’s the focus be on must need breath Amendment Freedoms First illegal any, activity, political and the ing survive, space to ground, disqualification on this must be regulate area with narrow political not his beliefs associations. specificity.” 371 U.S. at quoted improper an from also in- then has been an There Court right privacy. also area The hall- which is vasion of decision singularly man applicable “When one mark of civilization is that when a here: guess utterances his home and retreats what conduct or closes the door to must necessarily eyes position, privacy one thereof the and ears will lose him his zone of the will far unlawful state remain outside. Griswold v. ‘steer wider of * * Connecticut, Randall, supra. simply Speiser U.S. The state *.’ 357 v. 513, 1332, 1342, every supports 2 L.Ed.2d cannot affiant who 526 ask [78 S.Ct. 604, applicant at 684. for to the bar with at admission 385 U.S. 87 S.Ct. 1460].” applicant For deter whom the lives what threat of sanctions “[t]he * * * parents’ inside is like. There potently actual of his home almost as as application specific must lating re- v. be information NAACP some sanctions.” Button, 433, qualities expected those at 338. to one 371 at S.Ct. U.S. 83 Robel, legal also, professions to enter the be- v. 389 U.S. about See United States (1967); 419, 19 258, fore can asked of a be L.Ed.2d 508

146 prescribe particular applicant. can shall orthodox Gibson v. Florida what be Committee, nationalism,, religion, Legislative politics, Investigation or other can, opinion supra. to as it matters or force citizens course the Of long applicants has, require for or act there- ad- confess word their faith Virginia in.” Board of Edu- West mission bar to requi- Barnette, general cation fitness “character U.S. (1943). attorney at site S.Ct. 87 L.Ed. for counsellor gives statutory must The “First But these words Amendment freedom law.” given application security mind the same as freedom be such definition suggest appli- Collins, conscience.” Thomas U.S. defendants will 516, 531, 315, 323, conduct cants and affiants “dishonorable 89 L.Ed. S.Ct. legal (1944). profession, simply not in- It late our relevant to” the is too political try privacy history personal constitutional vasions of reconcile protected requirements beliefs and Rule 9406 with associations per- in' Shel- constitutional one Constitution. As the Court said axiom “that be “ * * * Tucker, supra, mitted ton v. even believe what he will.” Ameri- though governmental Douds, purpose le- can be Communications Ass’n v. gitimate substantial, purpose 94 L.Ed. broadly pursued by cannot All that Rule 9406 does is means that group personal force the Bar stifle to become a “[t]o fundamental liberties thoroughly gov- orthodox, narrowly time-serving, when the end can be more * * * ernment-fearing individuals achieved.” at at degrade” Keyishian, to humiliate and the Bar. [and] 252. And in said: 82, 115-116, Anastaplo, In danger chilling upon re “The of that effect 978, 996, (1961) exercise of vital First Amendment (Mr. dissenting). rights guarded against Justice Black It is must be sensi- nothing complete irony short clearly [lawyers] tools tive inform lawyers fought being who proscribed.” and won consti- what is protections professions tutional for other protection the last to receive therefore, judge, This holds that themselves. general “character and statute fitness” constitutional, interpretation, is but Rule 9406 is also unconstitutional on implementation application by its face for another obvious reason. respective defendant their courts and patently involving an area First Amend- character committees unconstitu- rights, consequences ment where the tional proof failure of are severe the mat- proved definition, ter to be is difficult of proof explicitly III. The Second Statute burden of prove loyal that he is pro- The second statute attacked here government. Speiser Randall, supra. that an vides admission satisfactory proof the bar must furnish statute, itself, says: Rule the effect “he believes in the person “No shall said receive certificate form of States United [of character and fitness] loyal government.” N.Y. person committee and no shall ad- clearly C.P.L.R. Rule 9406. This is practice a mitted to attorney as an and political determining courts, test admission counselor at in law the of rights the state, to bar in of violation secured satisfactory unless he shall furnish by the proof First and Fourteenth Amendment to the 1) effect: that he believes constitution, the to federal cf. Torcaso government in the form of of the United Watkins, v. 81 367 U.S. S.Ct. loyal government.” States and is to such “If there is simply There is no room for the conclu- sion, fixed star in our constitutional constella- majority which the reached the tion, official, high petty, it is that no Konigsberg ease, second the may nitely required produce proof and of put burden not the state has process, plain In this additional affidavits. is applicant; there on the obviously grounds applicant must defend his an language subject to attack not negative answer, expose defend his clearly a and vagueness. not burden is It of membership writings, speeches, coming his some his simply forward of organizations political his going various once the forward evidence or Where beliefs. facie case. prima out a has made before or evidence that in the statute

is procedures a here do not involve The require us? proof which would standard of go the character committees to forward Question (relating mem- Present grounds prove disqualification on to illegal advocating bership organizations over- activity political the once force) by government the throw of prima com- made The a facie case. Ques- required in the present the oaths interrogation may delay in- mittee (relating to the tionnaire and Statement altogether, definitely deny admission 9406) meth- is the substance C.P.L.R. Questionnaire as the and Statement initially put od which this is burden warn, fully any failure answer given upon applicant. the The answers question. oaths, Question the 26 and Defendants, brief, not in their do questions, yes no form attempt even make the luster dull upon per- the questioning lead to further brightest gems, plaintiffs’ of one of never been sonal seriously This has interview. Speiser Randall, supra; for there is is denied defendants and Questions plaintiffs’ the heart of case. clearly requirement authorized relating loyalty investigation N.Y.C. made. that P.L.R., clearly tread First Amendment ter- Consequently, in this Rule 9401. ritory. Consequently, Court said case, Randall, swpra,, Speiser more as in Speiser, “Where the transcendant taking of is than the a conclu- involved speech process value of is due involved political sive oath con- of non-criminal certainly requires in the circumstances in the oath duct such as was involved of this case that the bear the bur- majority cases justification here as referred to persuasion” ap- den of show requiring the second illegal guilty plicant political is con- cases, lawyers. In oath of those present procedure “The vice duct. Supreme validity sustained that, particular speech where falls loyalty public required em- oaths separating close to the line lawful ployees, Garner v. Board Public unlawful, possibility mistaken Works, 95 L. S.Ct. factfinding litigation— in all —inherent (1951); Ed. 1317 candidates for danger legiti- will create office, Supervisors, v. Board of Gerende penalized.” mate utterance will be S.Ct. L.Ed. U.S. at 78 S.Ct. at 1342. (1951); unions, officers labor American proving loyalty Communication Ass’n v. burden Douds, supra. But, majority government here, Speiser, as the as in can have points Speiser, person lawyer’s out in “If prospective took but one effect on a position. freedoms, oath he his retained First Amendment chilling part freezing oath aof device to shift to effect if a one. proving office bring holder the man burden “The that he who knows must right position.” his proof persuade retain Id. 357 forth another of the necessarily at 1343. Here as lawfulness of his conduct Speiser, questions answers to must steer far unlawful zone wider of “only step the oath in a than the State must bear bur- throughout process [applicant] dens.” Id. at 1342. See proof.” Russell, supra, must bear Id. the burden also Elfbrandt applicant may 17-18, questioned Abington The indefi- at S.Ct. any Schempp, ance of treasonable or seditious

School District v. word 289-290, doing any 844 or words L.Ed.2d or the treasonable act”, (Mr. at Brennan concur- seditious Id. at Justice Moreover, persons ring). person must 678. a who Another statute barred “by spend long years employment preparation in- who teachers large money writing wilfully vest legal to enter word mouth or sums of going clearly deliberately advocates, profession to be is advises teaches prone more wider the un- doctrine” of “to far forceful overthrow steer government. Id. at at lawful zone.” language equally of Rule 9406 is applicant to the for admission Here vague. language of Rule 9406 proving he bar loyal burden government. “wholly lacking susceptible ‘terms opin- If in the to the ” objective measurement.’ Id. at ion of members of the character some 87 S.Ct. at 684. And “men of common burden, committee he should fail intelligence guess necessarily at must requisite he is certificate. denied meaning applica- its and differ as to means that the is denied This * * Bullitt, Baggett supra, tion opportunity profession to enter 377 U.S. at 84 S.Ct. at 1320. The large spent for which he has sums “loyal government” words to such are no money study. and much time “So far “ phrase ‘respect more definite than the consequences as I am concerned the * * * the institutions of the from a whether considered * * * United States America standpoint, standpoint, financial a social allegiance government undivided any standpoint of, I can think ” * * lacking found in ascertain- ‘penalty’ constitute more than serious Baggett. able Id. standards at Speiser,” Konigsberg imposed upon at California, supra, v. State Bar of vague statute, 81 S.Ct. at Mr. Justice Pursuant to this de- dissenting. require Ques- applicants Black fendants on the tionnaire and Statement to answer these If, Speiser, inas cannot con- questions: you prin- “Do believe stitutionally impose upon a veteran seek- ciples underlying govern- the form of ing exemption prov- a tax burden ment the United States of America? ing loyalty government, by to our what you conscientiously, Can you, do reasoning constitutionally can the state you are, any affirm that without mental impose seeking such burden on one loyal reservation, ready sup- to and practice license to law? Defendants did port the Constitution United question not answer this to the satisfac- States?” The italicized words consti- tion of this court and did cite portion tute the amended of this oath. case position to sustain their other than just This prior amendment was made Konigsberg the second case where filing of these actions. This second explicitly Court found burden was question formerly you read: “Can con- applicant. not on the scientiously you you and do affirm that Finally, Rule 9406 is uncon- likewise are, reservation, loy- without mental stitutional its face since it lacks suf- al to the Government of the United determining ficient standards who States?” The first was also shall be admitted to the bar. It has requirement amended to delete the quality “extraordinary ambigui- same applicant write, in not than 100 less ty” describing condemned words, principles what he believes those statutory Keyishian, framework in underlying our form of 87 S.Ct. 675. amendments, however, be. vague These do not language statutory There held stamp rescue these required oaths from the unconstitutional. One statute discharge unconstitutionality. of a teacher for “the utter- pur- Lawyers lawyers. for than questions are oaths teachers are of These York law. perjury ficers the court that poses sense under they subject discipline law, affirma- an are to the oath includes Under McKinney’s obligation Law, Consol. and an court are under to tion N.Y.Penal appli- justice. an Laws, hinder When the administration 210.00. c. § question public employees in Teachers and other are the second cant answers employed unquestionably directly taken he has the state which affirmative Moreover, applicants are thus has added an an oath. interest of em ployer. majority one made is statement here that holds that warned ap- lawyers special category Consequently, in when are and oath. under supra, may, question, therefore, required plicant the first an be to take answers end upheld at the oath such as then or affirms those as to “a limit swears and Statement, Questionnaire persons aspiring pub ed class in and or to positions by they required, affirmative lic the truth of his to virtue could, answer, evilly motivated, oath has taken if create serious attach, danger perjury safety.” public Garner, penalties for to the Elkins, supra, supra; supra; Gerende, v. as in Whitehill American Com same Russell, supra. Ass’n, supra. ma Elfbrandt v. munications But and jority pointed Speiser Randall, out in v. El required v. in Whitehill oath If the supra, in that those cases was no there engaged one (“I in kins, supra, am not attempt directly speech, to control as in attempt to over way in another case, protect, the instant but rather the United throw the be.grave, from some evil shown to some constitutionally unacceptable States”) is clearly gov sphere interest within the vague and broad too because teachers danger ernmental concern. What to the light member when read in public actually is created “subver tied; it and ship which was statute to lawyer? Again, sive” (“I Bullitt, Baggett the oath thoroughly been examined.25 The con ** * respect promote for the will danger clusion is small and the United flag and the institutions that, any event, adequate remedies *' ** allegiance undivided States penalties form of criminal constitution government”) cannot already punish disbarment exist it ally because required of teachers irresponsible deter conduct. broad; vague oath if the is also Finally, Cramp Board seems clear a deter- required of teachers vagueness supra Instruction, (“I not mination as to and broad- of Public advice, aid, my support, ness of these un- oath must be lend will not necessary requisite dertaken aas to the Communist counsel influence broad; vague consideration Party”) the obstruction is likewise lawyers investigative process by pursuant rationale shall what refusing questions, vague and broad answer these oath required to take supra. Elkins, suggested cf. Whitehill Rule It here? has been oaths language, “loyal govern- more 9406’s to such there is and that is none there question’s language, generous ment” applying First and the first reason “principles underlying gov- admission the form of standards bar Amendment enough certainly employment cases.24 ernment” are broad than cases encompass constitutionally protected important reason The most against protest activity employees cer- dissent and teachers, example, governmental policies employed princi- tain lawyers state while attempt by ples. their There has been no stat- owe whom their clients ute, regulation, rule, obligation. would court decision difference This first enlighten anyone regulation greater as to what justify utterances seem to Id. at 40. Id. at 52. may Constitution, XIII, or what be construed as New activities York Article contrary disloyalty government Judiciary our New to York Law 466.26 § § underlying principles our form say Secondly, plaintiffs that the at- government. Clearly, law students tempt vague to save these to oaths as government’s poli- who from this dissent belief with the constitu- assimilation respect cies the war in Vietnam with tional oath of office cannot succeed. The ground for concern as to whether authority prescribe fact is that loyal government. “It these oaths from C.P.L.R. derives say is no answer that statute statutory prerequisite which is a for applied would in such a not be case. We and, consequently, admission to the bar gainsay potential cannot effect must be considered with reference there- wording on this obscure ‘those with to and not with reference to the Constitu- regard scrupulous conscience and already required lawyers tional oath ” Keyishian, undertakings.’ plaintiffs object. and to which do not 385 U.S. at accept Even if we defendants’ contention that C.P.L.R. 9406 and these oaths must two As to the embodied in the oaths light be construed in of the constitutional argue questions, ex- defendants that oath, as the Court Whitehill v. said statutory New York amination of the Elkins, supra, 61-62, atU.S. Legisla- scheme both the discloses that at 187 the statute and these oaths are Appeals ture treat and the Court of “befogged”. here, still findWe as the of the members of bar as officers there, found “an overbreadth who, required such, courts as take supra] possible [discussed that makes Ac-< constitutional oath of office. oppressive capricious application” as cordingly, defendants, say require- personnel ap- character committee person ments of that a C.P.L.R. pellate justices change. division That shall not be admitted to the bar unless very may threat deter the unfettered “satisfactory proof he furnishes exercise of First Amendment freedoms effect that he in the form of believes by law students much as successive government of United States and is perjury. suits This statute and these loyal government” con- to such must be just oaths are example another classic e., harmony purpose, strued in i. with legislation the often cited need drawn merely applicant, ap- to test that the precision in this sensitive and proved, honestly truly can take the important First Amendment area. cf. Thus, constitutional of office. de- oath supra. Whitehill Elkins, plead, fendants not be C.P.L.R. promissory vague distinction between or unconsti- deemed to be either oath and test oath of kind here tutional; merely requires, sub- recognized long ago. involved was Ex stance, that a law affirm officer-to-be parte Garland, (4 Wall.) 333, loyal he that believes in and is our L.Ed. 366 The oaths involved the' constitutional form promissory here support are not oaths to any judge same as or other state officer. Constitution of State and the reply, plaintiffs’ points In are exceed United States inas the ease of the con- ingly apt. First, there is no attack made stitutional oath. The fact requirement every here “yes” oaths are in the form and “no” person upon being significance. admitted to the special bar is of If given promissory take the give oath all does not the desired support answer, state officers state and “yes”, which in case this he by may required questioned federal which is further, delayed constitutions solemnly (or affirm) faithfully discharge 26. “I do swear the duties of support of...........according I will the Constitution office to the best States, my ability.” United and the Constitution York, N.Y.Const., XIII, the State of and that I will Art. 1.§ admission, disqualified without warned questioning. He is further Questionnaire and on the front carry the short, he must Statement. qualified for he proof burden simply a oaths are These admission. support Constitution.

promise appli- require an These are oaths which present past or constitu- cant disclaim

tionally political protected beliefs reason, e., i. It is for activities. broad, vague too too

these oaths are equated con- with the cannot oath.

stitutional plaintiffs “strike home”

Finally, gem their storehouse out of another Floyd, precedent,

recent Bond here, claimed, There the state had

right to test officer-to-be to examine the ability sincerity the con- to take prescribed. The oath there stitutional response this claim ruled case, the Bond conceded power could not be

that such a susceptibility to of its because obvious demonstrate. it went

abuse which

Again, that there made clear the Court specific evidence must be some inability

prospective to take officer’s inquiry becomes oath before simply done

proper. cannot be It

every case. Plaintiff, JACKSON,

Mae M. FIRE IN MUTUAL

The AMERICAN COMPANY, Defendant. SURANCE

No. C-135-R-66. District Court States

United Carolina, D. M. North Rockingham Division. 2,

Oct.

Case Details

Case Name: Law Students Civil Rights Research Council, Inc. v. Wadmond

Court Name: District Court, S.D. New York

Date Published: Feb 17, 1969

Citation: 299 F. Supp. 117

Docket Number: 68 Civ. 2917, 2938

Court Abbreviation: S.D.N.Y.