Willner v. Committee on Character and Fitness, Appellate Div. of Supreme Court of NY, First Judicial Dept.

Opinion of the Court by

Mr. Justice Douglas, announced by Mr. Justice Black.

Petitioner passed the New York bar éxaminatións in 1936 but has not yet been admitted to practice. The present case is the latest in a long series of proceedings whereby he seeks admission.

Under New York law the Appellate Division of-the' State Supreme Court of each of the four Judicial Departments *98 has power to admit applicants to the Bar. Once the State Board of Bar' Examiners certifies that an applicant has passed the examination (or that an examinátion has been dispensed with), the Appellate Division shall admit him to practice “if it shall be satisfied that' such person possesses the character and general fitness requisite for an attorney and counsellor-at-law.” Judiciary Law § 90 (i)(a).

The Appellate Division is required by Rule 1 of the New York Rules of Civil Practice to appoint a committee of not less than three practicing lawyers “for the purpose of investigating the character and fitness” óf applicants. •“Unless otherwise ordered by the Appellate Division, no person shall be admitted to practice”'without a favorable .certificate from the Committee. Ibid. Provision is made for submission by the applicant to the Committee of “all the information and data required by the committee and the Appellate Division justices.” Ibid. If an applicant has once applied for -admission and failed to obtain a certificate of good character and fitness, he must obtain and .submit “the written consent” of the Appellate Division to a renewal of his application. Ibid.

The papers of an applicant for admission to the Bar .are required by Rule 1 (g) of the Rules of Civil Practice to be kept on file in the Office of the Clerk of the Appellate Division.

The. Court of Appeals pursuant to its rule-making authority (Judiciary Law § 53(1)) has promulgated Rules for the Admission of Attorneys and Counsellors-at-Law which provide, inter alia, that every applicant must produce before the Committee “evidence that he possesses the good moral character and general fitness requisite for an attorney and counsellor-at-law”. (Rule VIII-1), and that justices of the Appellate Division shall adopt “such additional rules for ascertaining the moral and general *99 fitness of applicants as to such justices may seem proper.” Rule VIII-4.

The Appellate Division to which petitioner has made application has not promulgated any “additional rules” under Rule VIII-4. Its Character and Fitness Committee consists of 10 members; and that Committee, we are advised, has not published or provided any rules of procedure.

The statute provides that “all papers, records and documents” of applicants “shall be sealed and be deemed private and confidential,” except that “upon good cause being shown, the justices of the appellate division . . . are empowered, in their discretion, by written order, to permit to be divulged all or any part of such papers, records and documents.” Judiciary Law §90(10). And for that purpose they may make such rules “as they may deem necessary.” Ibid.

But New York does not appear to have any procedure whereby an applicant for admission to the Bar is served with an order, to show cause by the Appellate Division before he is denied admission nor any other procedure that gives him a hearing prior to the court’s adverse action.1

*100 The present case started with a petition by Willner to the Appellate Division seeking leave to file a de novo application which alleged the following:

Willner had been certified by the State Board of Bar Examiners as having passed the bar'examinations in 1936, and the Committee in 1938, after several hearings, filed with the Appellate Division its determination that it was not satisfied'and could not “certify that the applicant possesses the character and general fitness requisite for an attorney and counsellor-at-law.” In 1943 Willner applied to the Appellate Division for an order directing the Committee to review its 1938 determination. This motion was denied without opinion. Willner in 1948 again petitioned the Appellate Division for a reexamination of his application, and for permission to file a new application. The Appellate Division permitted him to file a new application. Upon the filing of that application, the Committee conducted two hearings in 1948 and, by a report in 1950, refused to certify him for the second time. In 1951 Willner again made application to the Appellate Division for an order directing, inter alia, the Corn- *101 mittee to furnish him with statements of its reasons for its refusal to certify him or that a referee be appointed to hear and report on the question of his character and fitness. This application was denied without opinion. In 1954 Willner filed a fourth application with the Appellate Division requesting leave to file an application for admission. This was denied without opinion. The Court of Appeals refused leave to appeal, and this Court denied certiorari. 348 U. S. 955. In 1960 Willner filed a fifth application with the Appellate Division, which application was denied without opinion.

The present petition further alleged that Willner has been a member in'good standing of the New York Society of Certified Public Accountants and of the American Institute of Accountants since 1951 and that he has been admitted to practice before the Tax Court and the Treasury Department since 1928. Petitioner alleged that in connection with his hearings before the Committee on his 1937 application he was shown a letter containing various adverse statements about him from a New York attorney; that a member of the Committee promised him a personal confrontation with that attorney; but that the promise was never kept. Petitioner also alleged that he had been involved in litigation with another lawyer who had as his purpose “to destroy me”; that the secretary of the Committee was taking orders from that lawyer and that two members of the Committee were' “in cahoots” with that lawyer.

The Appellate Division denied the petition without opinion and denied leave to appeal to the Court of Appeals. Willner thereupon sought leave to appeal to the Court, of Appeals and in an affidavit in support of his motion stated, “I was never afforded the opportunity of confronting my accusers, of having the accusers sworn and cross examining them, and the opportunity of refuting the accusations and accusers.”

*102 The Court of Appeals granted leave to appeal and the Clerk of that Court obtained from the Clerk of the Appellate Division the file in the case. Willner, in his brief before the-Court of Appeals, argued he had been denied his constitutional rights in that he had been denied confrontation of his accusers and.that, in, spite of the repeated attempts, he could not be sure of the Committee’s reasons for refusing to certify him for admission. The Court of Appeals, after oral argument, affirmed the order without opinion. 11. N. Y. 2d 866, 182 N. E. 2d 288. Thereafter, at Willner’s request, the Court of Appeals amended its remittitur to recite that

“Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz: Appellant contended that he was denied due process of law in. violation of his constitutional rights under the Fifth and Fourteenth Amendments' of the Constitution. The Court of Appeals held that appellant was not denied due process ixi violation of such constitutional rights.”

We granted certiorari, 370 U. S. 934.

The issue presented is justiciable. “A claim of a present right to admission to the bar of á state and a denial of that right is a controversy.” In re ,Summers, 325 U. S, 561, 568. Moreover, the requirements of procedural due process must be met before a-State can.exclude a person from practicing law. “A State cannot exclude a person from the practice of law of from any other occupation in a manner of for reasons that contravéne the Due Process or Equal Protection Clause of the Fourteenth Amendment.” Schware v. Board of Bar Examiners, 353 U. S. 232, 238-239. As the Court said in Ex parte Garland, 4, Wall. 333, 379, the right is not “a matter of grace and favor.”

*103 We are not here concerned with grounds which justify denial of a license to practice law, but only with what procedural due process requires if the license is to be withheld. This is the problem which Chief Justice Taft adverted to in Goldsmith v. Board of Tax Appeals, 270 U. S. 117, involving an application of a certified public, accountant to practice before the Board of Tax Appeals. Chief Justice Taft writing for the Court said:

“We think that the petitioner having shown by . his application that, being a citizen of the United States and a certified public accountant under the laws of a State, he was within the class of those entitled to be admitted to practice under- the Board’s rules, he should not have been rejected upon charges of his unfitness without giving him an opportunity by notice’ for hearing and answer. The rules adopted by the Board provide that 'the Board may in its discretion deny admission, suspend or disbar any person.’ But this must be construed to mean the exercise of a discretion to be exercised after fair investigation, with such a notice, hearing and opportunity to answer for the applicant as would constitute due process.” Id., p. 123.

We have emphasized in recent years that procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood. See Greene v. McElroy, 360 U. S. 474, 492, 496-497, and cases cited.2 That view has been taken by several state courts when it comes to procedural due process and the admission to practice law. Coleman v. Watts, 81 So. 2d 650; Application of Burke, 87 Ariz. 336, 351 P. 2d 169; In re Crum, 103 Ore. 296, 204 P. 948; Moity v. *104 Louisiana State Bar Assn., 239 La. 1081, 121 So. 2d 87. Cf. Brooks v. Laws, 208 F. 2d 18, 33 (concurring opinion). We think the need for confrontation is a necessary conclusion from the requirements of procedural due process in a situation such as this. Cf. Greene v. McElroy, supra; Cafeteria Workers v. McElroy, 367 U. S. 886.

This result, is sought to be avoided in several ways. First, it is. said that the Committee’s action is merely advisory, that it is an investigator not a trier of facts, since under § 90 of the Judiciary Law it is the Appellate Division that ultimately must be convinced of an applicant’s good character. The answer is that “[ujnless otherwise ordered by the Appellate Division” (New York Rules of Civil Practice, Rule 1 (d)), á favorable certificate from the Committee is requisite to admission by the Appellate Division; and where, as here, the Appellate Division has held no hearings of its own to determine an applicant’s character, the role of the Committee is more than that of a mere investigator.

Second, it is said that petitioner has.sought relief too late. But the Court of Appeals did' not reject his peti-' tio'n on that ground. Instead, it stated that it “necessarily” ruled on the constitutional issue “presented.” We can only conclude that the Court of Appeals would have found it “unnecessary” to pass, upon any constitutional question if under state law some other ground had .existed for denying petitioner relief. See Cincinnati Packet Co. v. Bay, 200 U. S. 179, 182; Lynumn v. Illinois, 372 U. S. 528, 535-536.

Third, it is said that the record,shows that petitioner was not rejected on the basis of ex parte statements but on the basis of his. own statements to the Committee. If the Court of Appeals reached this' conclusion, the only constitutional question which was presented and which it could have “necessarily” passed on was whether petitioner was denied due process by not being informed of aiid *105 allowed, to rebut the bases for either the Committee’s or the Appellate Division’s failure to find his good character. It does not appear from the record that either the Committee or the Appellate Division, at any stage in. these proceedings, ever apprised petitioner of its reasons for failing to be convinced of his good character. Petitioner was clearly, entitled to notice of and a hearing on the grounds for his rejection either before the Committee or before the Appellate Division. Goldsmith v. Board of Tax Appeals, supra; cf. In re Oliver, 333 U. S. 257, 273. There seems no question but that petitioner was apprised of the matters the Committee was considering.

“But a ‘full hearing’ — a fair and open hearing— requires more than that. . . . Those ' who are brought into .contest with . . . Government .in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command.” Morgan v. United States, 304 U. S. 1, 18-19.

Petitioner had no opportunity to ascertain and contest the bases of the Committee’s reports to the Appellate Division, and the Appellate Division gave him no separate hearing. Yet, “[t]he requirements of fairness are hot exhausted in the taking or consideration of evidence but extend to the concluding parts of the procedure as well as to the beginning and intermediate steps.” Id., at 20. Cf. Gonzales v. United States, 348 U. S. 407, 414.

If the Court of Appeals based its decision on the ground that denying petitioner the right of confrontation did not violate due process, we also hold that it erred for the reasons earlier stated. But because respondent has asserted that the ex parte statements involved in this case played no part in any of the decisions below, we have searched the record to assess this contention. It shows that the *106 Committee • had several complaints against petitioner. The various intra-Committee memoranda and reports to the Appellate Division contained in this record .support the conclusion that the Committee did in fact rely on these complaints, at least to some extent, in reaching its determinations. And there is no- indication in the record that any of the Appellate Division’s orders were based solely on petitioner’s own statements. Thus, despite respondent’s assurances that the Committee never bases its final action on ex parte statements, we cannot say that the Court of Appeals erred in concluding that' this constitutional question was “necessarily” decided.

We hold that petitioner was denied procedural due process when he was denied admission to the Bar by the Appellate Division without a hearing on the charges filed against him before either the Committee or the Appellate Division.

Reversed.

In New Jersey the Committee on Character and Fitness is directed by Rule 1:20-6 (a) of the Supreme Court Rules to take the •following steps in case of an adverse report:

“If the committee believes that an applicant is not of fit character or has not served a satisfactory clerkship, it shall promptly notify the applicant of • its intention to' file an .adverse report as to his moral character or clerkship and of the time, not less than 5 days, within which the applicant may file with the committee a written request fór a hearing. If the applicant does not request a hearing within the time fixed by the committee, it shall promptly notify'him of its action and file its report with the court for appropriate action by it. If the applicant requests a hearing within the time fixed by the committee, it shall promptly notify him of the time and' place of the *100 hearing. The hearing shall be conducted in private and in a formal manner. A complete stenographic record shall be kept and to this end an official court reporter of the county, assigned by the supervising court reporter for that purpose, shall serve the committee and prepare, without additional compensation, such transcripts as may be ordered by it. A transcript may be ordered by the applicant at his own expense. The committee shall submit a report of its findings and conclusions to the court, with a copy to the applicant, for appropriate action by it. An applicant aggrieved by the determination of the committee may, on notice to the committee, petition the court for relief.”

Rule 1:20-6 (b) goes on to provide:

“The Board of Bar Examiners, subject to the approval of the court, shall prescribe the procedures to be followed by the committees on character and fitness in the performance of their duties under paragraph (a) of this rule.”

Cf. Cafeteria Workers v. McElroy, 367 U. S. 886, where only “the opportunity to work at one isolated and specific military installation” was involved. Id., at 896.