UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
February 17, 1969
LAW STUDENTS CIVIL RIGHTS RESEARCH COUNCIL, INC., Toby B. Golick, James C. Mauro, Jr. and William H. B. Rodarmor on behalf of themselves and all other persons similarly situated, Plaintiffs,
Lowell WADMOND, Felix A. Muldoon, Edwin L. Weisl, Mark F. Hughes, Bruce Bromley, Monroe Goldwater, Arthur H. Schwartz, Bernard Teencher, Thomas B. Dyett and Alfred A. Giardino as chairman and members of the Appellate Division First Department Committee on Character and Fitness of Applicants for Admission to the Bar, Defendants. Stephen Martin WEXLER, H. Gabriel Kaimowitz, Robert M. Cover, the Columbia Law Students Guild, New York City Chapter of National Lawyers Guild, Plaintiffs, v. The SUPREME COURT OF the STATE OF NEW YORK, APPELLATE DIVISION, FIRST JUDICIAL DEPARTMENT; the Supreme Court of the State of New York, Appellate Division, Second Judicial Department; the Committee on Character and Fitness, Supreme Court of the State of New York, Appellate Division, First Judicial Department; the Committee on Character and Fitness, Supreme Court of the State of New York, Appellate Division, Second Judicial Department, Defendants
The opinion of the court was delivered by: FRIENDLY
FRIENDLY, Circuit Judge:
These two actions for injunctive and declaratory relief, invoking our jurisdiction, 28 U.S.C. § 1343(3), to enforce the Civil Rights Act, 42 U.S.C. § 1983, challenge the constitutional validity of procedures for admission to the New York bar, both generally and particularly as applied in the First and Second Judicial Departments.
The plaintiffs in 68 Civ. 2938 are three candidates certified as having passed their bar examinations, the Columbia Law Students Guild, and the New York City Chapter of the National Lawyers Guild. The plaintiffs in 68 Civ. 2917 are the Law Students Civil Rights Research Council, Inc., an organization of some 1500 law students with chapters at sixty law schools including four in New York City, and three law students who plan to apply for admission to the New York bar when eligible. Both actions are sought to be maintained as class actions on behalf of all persons seeking or planning to seek such admission. The defendants are the Appellate Divisions and their Justices and the Committees on Character and Fitness for the First and Second Judicial Departments and their members.
Section 90(1)(a) of the New York Judiciary Law, McKinney's Consol.Laws, c. 30, provides
Upon the state board of law examiners certifying that a person has passed the required examination, or that the examination has been dispensed with, the appellate division of the supreme court in the department to which such person shall have been certified by the state board of law examiners, if it shall be satisfied that such person possesses the character and general fitness requisite for an attorney and counsellor-at-law, shall admit him to practice as such attorney and counsellor-at-law in all the courts of this state, provided that he has in all respects complied with the rules of the court of appeals and the rules of the appellate divisions relating to the admission of attorneys.
This provision is implemented by Article 94 of the Civil Practice Law and Rules enacted in 1962, which adopts rules previously promulgated by the Justices of the Appellate Divisions. The rules
comprising Article 94 direct the appellate division in each judicial department to appoint a committee to investigate the character and fitness of each applicant for admission, R. 9401; prescribe that "unless otherwise ordered by the appellate division, no person shall be admitted to practice without a certificate from the proper committee that it has carefully investigated the character and fitness of the applicant and that, in such respects, he is entitled to admission," R.9404; and authorize such committee, "subject to the approval of the justices of the appellate division, * * * to prescribe and from time to time to amend a form of statement or questionnaire on which the applicant shall set forth all the information and data required by the committee and the appellate division justices, including specifically his present and such past places of actual residence as may be required * * *," R. 9404. Rule 9406 directs:
No person shall receive said certificate from any committee and no person shall be admitted to practice as an attorney and counselor at law in the courts of this state, unless he shall furnish satisfactory proof to the effect:
1. that he believes in the form of the government of the United States and is loyal to such government * * *
The complaints attack a number of these provisions as violating the First Amendment to the Constitution as made applicable to New York by the Fourteenth. The statutory provisions, notably § 90(1)(a) of the Judiciary Law and the quoted portion of Rule 9406, are challenged as being so vague and impermissibly broad as to have a "chilling effect," see Dombrowski v. Pfister, 380 U.S. 479, 494, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), on plaintiffs' exercise of their First Amendment rights. Rule 9406 is challenged as allowing investigation into mere beliefs and denial of admission for them and as placing on applicants a burden of proof they cannot constitutionally be made to bear. The questionnaires prescribed by the two committees are criticized as requiring disclosure of acts and associations beyond the scope of proper inquiry. Believing that substantial constitutional issues had been tendered, Judge Motley requested the Chief Judge of the Circuit to convoke a court of three judges, 28 U.S.C. §§ 2281, 2284, and this was done. Judge Motley reserved judgment on the motion made by plaintiffs in 68 Civ. 2917 to consolidate the two suits pursuant to Fed.R.Civ.P. 42(a); we grant the motion and have considered the cases together. Plaintiffs have sought summary judgment or, if that not be granted, a preliminary injunction and discovery. The defendants have moved for dismissal of the complaint or, in the alternative, for dismissal so far as the complaint relates to the statutes
and remission of the issues concerning the questionnaires to Judge Motley.
Before proceeding to the merits we must examine claims made with respect to the standing of the plaintiffs, the suability of the defendants, the failure to join the Court of Appeals or its members, and the desirability of abstention.
With respect to the individual plaintiffs, defendants admit the standing only of the three who have passed the bar examination. They contend however, that, so far as concerns the statutes, these three have no need for equitable relief since, if the character committee should refuse them certification on an impermissible ground, they can obtain an adequate remedy by applying to the appellate division and, if the state courts persist in refusal, by seeking review in the Supreme Court; and that, so far as concerns the questionnaires, their objections are at most a matter for a single judge since each questionnaire is effective only in part of the state. We find it unnecessary to evaluate this argument.
For we believe the three plaintiffs who are law students intending to apply for admission have standing to seek equitable relief since they have set themselves apart from the public at large sufficiently to have standing to protest statutes governing admission to the bar that may inhibit exercise of First Amendment rights during the period of their study. Cf. Gart v. Cole, 263 F.2d 244, 250 (2 Cir.), cert. denied, 359 U.S. 978, 79 S. Ct. 898, 3 L. Ed. 2d 929 (1959); Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964); Overseas Media Corp. v. McNamara, 128 U.S.App.D.C. 48, 385 F.2d 308 (1967); Davis, Standing: Taxpayers and Others, 36 U.Chi.L.Rev. 601, 617-628 (1968). Since these students raise a substantial constitutional question with respect to at least one of the statutes, a court of three judges is required for that purpose; the argument that attacks on the questionnaires should be remitted to a single district judge will be examined later in this opinion. We also have no occasion now to consider the standing of the various organizations that have joined in the complaints.
In considering whether an injunction or a declaratory judgment should be issued, we start from the principle of Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), that when officers administering a state statute act in a manner that exceeds constitutional limits, they have no claim to sovereign immunity. Against this is the equally well settled principle that a judge exercising his judicial function is not liable for damages under 42 U.S.C. § 1983. Pierson v. Ray, 386 U.S. 547, 553-555, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967).
While the interest served by the latter principle in making the state judge free "to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants," without "fear that unsatisfied litigants may hound him with litigation charging malice or corruption," Pierson v. Ray, supra, 386 U.S. at 554, 87 S. Ct. at 1218, is an important one, its applicability to an injunction is by no means clear. See United States v. McLeod, 385 F.2d 734, 738 (5 Cir. 1967) (Wisdom, J.). We fail to perceive what interest would be served by holding federal courts to be powerless to enjoin state officers from acting under a statute that allegedly deprives citizens of rights protected by the Civil Rights Act or promulgating regulations that are alleged to have that result simply because some of them are robed and others have been appointed by those who are. Rather it would seem anomalous that while federal courts could entertain a complaint similar to the plaintiffs' if made with respect to other licensed professions, such as medicine or accountancy, they are powerless with respect to admission to the bar. The grant of injunctive relief in a case like this would not have the in terrorem effect on state judges that the threat of a subsequent damage action would have; rather, it would furnish a definitive ruling on a point of federal law for their future guidance, and, as shown above, fn. 4, would not infringe the policy expressed in the federal anti-injunction statute, 28 U.S.C. § 2283, proscribing injunctions that would stay "proceedings in a State court." The criteria set forth in Dombrowski v. Pfister, supra, for the grant of the extraordinary relief of injunction against the enforcement of a state statute are alleged to be present here. Plaintiffs do not challenge a state court's disposition of an individual case, but attack as "overly broad and vague regulations of expression," see 380 U.S. at 490, 85 S. Ct. at 1123, the rules and regulations promulgated and administered by the appellate divisions and their delegates. The alleged infringement of First Amendment rights of law students cannot be dissipated by the processing of particular individuals' applications for admission to the bar. These factors, which were "controlling on both the exercise of equitable power and the abstention issue" in Dombrowski, see Cameron v. Johnson, 381 U.S. 741, 755, 85 S. Ct. 1751, 14 L. Ed. 2d 715 (1965) (White, J., dissenting), make appropriate our consideration of equitable relief even though the defendants would be immune from liability in damages for their administration of the challenged procedures, see Saier v. State Bar of Michigan, 293 F.2d 756 (6 Cir.), cert. denied, 368 U.S. 947, 82 S. Ct. 388, 7 L. Ed. 2d 343 (1961); Gately v. Sutton, 310 F.2d 107 (10 Cir. 1962); Clark v. Washington, 366 F.2d 678 (9 Cir. 1966) (judges and their delegates immune for roles in disbarment proceedings). To hold otherwise would be to leave without a remedy a significant class of the deprivations of federal rights under color of state law that Congress intended the federal courts to redress under 42 U.S.C. § 1983 and 28 U.S.C. § 1343.
We likewise see no force in defendants' argument that the suits should be dismissed, pursuant to Fed.R.Civ.P. 19, for failure to join the Court of Appeals or its members. While plaintiffs' attack on the "statutory scheme" governing admission to the bar takes in a Rule of the Court of Appeals, Rule VIII, the involvement of that rule does not necessitate joinder of its authors any more than an attack on the application of a statute requires joinder of the legislature. Moreover, the rule, adopted to implement Judiciary Law § 90, is attacked only for failing to furnish standards more precise than those found in § 90 and CPLR Article 94, and thus failing to rescue the procedure from the defects that allegedly inhere in the latter provisions. Section 90 and Article 94 have been enacted by the Legislature, and they place actual administration in the appellate divisions and their delegates, the committees on character and fitness, not in the Court of Appeals. There is no practical obstacle to adjudication of the constitutionality of this procedure in the absence of the Court or its members. Contrast Association For the Preservation of Freedom of Choice, Inc. v. Wadmond, 215 F. Supp. 648, 651-652 (S.D.N.Y.1963).
With respect to abstention, defendants have not made clear what debatable issues of construction state proceedings could resolve. Their contention is rather that admission to the bar is so peculiarly a matter of state concern that its resolution should be left to the state courts, subject, of course, to review by the Supreme Court. But that Court has given short shrift to similar claims in matters, equally of state concern, such as education, McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963), and state employees, Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964); Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967).
We therefore proceed to the merits.
We need not tarry long over the claim that the requirement of § 90(1)(a) of the Judiciary Law that entrance to the bar shall be allowed only to a person who "possesses the character and general fitness requisite for an attorney and counsellor-at-law" is impermissibly vague. We perceive no significant distinction between this and California's requirement of "good moral character," duplicated in many other states, which the Court said in Konigsberg v. State Bar of California, 366 U.S. 36, 40-44, 81 S. Ct. 997, 6 L. Ed. 2d 105 (1961), could not "well be drawn in question." Indeed, New York's requirement is somewhat more definite in specifying that the character traits required are those directly related to suitability for the practice of law. Once it is granted that the state can constitutionally require something more of applicants for admission to the bar than absence of the kind of criminal record that would warrant expulsion, as Konigsberg must be taken to have decided, the state must perforce use language of some generality. Such words, like others familiar in our law, acquire content through years of administration, see, e.g., Re Peters, 221 App.Div. 607, 225 N.Y.S. 144, aff'd, 250 N.Y. 595, 166 N.E. 337, rearg. denied, 252 N.Y. 572, 170 N.E. 148 (1927) (admission denied because of disbarment in another state); Re Greenblatt, 253 App.Div. 391, 2 N.Y.S.2d 569 (1938) (admission denied because of misrepresentations to character committee about applicant's dismissal from college for misconduct); Application of Cassidy, 268 App.Div. 282, 51 N.Y.S.2d 202, aff'd on rehearing, 270 App.Div. 1046, 63 N.Y.S.2d 840, aff'd, 296 N.Y. 926, 73 N.E.2d 41 (1944) (admission denied because applicant urged creation of armed units for forceful overthrow of government and made inconsistent statements indicating lack of veracity). See also Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957) (concurring opinion of Mr. Justice Frankfurter). Plaintiffs' affidavits and briefs are eloquently silent about instances where New York has unjustifiably denied admission for lack of "the character and general fitness requisite for an attorney and counsellor-at-law."
Rule 9406 demands more discussion. Plaintiffs' initial criticism is procedural. They say the requirement that the applicant "shall furnish satisfactory proof" of belief in our form of government and loyalty to it unconstitutionally imposes a burden of proof in violation of Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958). We think that case fairly distinguishable on two grounds: The statute condemned in Speiser applied to all veterans claiming property tax exemption, and the Court differentiated loyalty oaths required of "a limited class of persons in or aspiring to public positions by virtue of which they could, if evilly motivated, create serious danger to the public safety." 357 U.S. at 527, 78 S. Ct. at 1343. Lawyers, who are officers of the courts, fit the latter rubric. In Konigsberg v. State Bar, supra, 366 U.S. at 54, 81 S. Ct. 997, the Court noted this distinction. Rule 9406 is also sustainable on the other ground taken in Konigsberg, 366 U.S. at 36, 81 S. Ct. 997, 6 L. Ed. 2d 105, namely, the lack of "unequivocal indication" that it imposes a true burden of proof as distinguished from a burden of coming forward with evidence. We see no reason why New York may not impose the latter with respect to a subject concerning which the applicant has detailed knowledge but the committees would be required to make extensive investigation.
Plaintiffs' substantive attack is that Rule 9406 has the breadth branded as unconstitutional in such important recent cases as Baggett v. Bullitt, supra, 377 U.S. 360, 84 S. Ct. 1316; Elfbrandt v. Russell, 384 U.S. 11, 86 S. Ct. 1238, 16 L. Ed. 2d 321 (1966); and Keyishian v. Board of Regents, supra, 385 U.S. 589, 87 S. Ct. 675 (1967). When one examines the decisions, in contrast to culling phrases from them, they are plainly distinguishable. What the Court found defective in Baggett about the teachers' oath specified in the Washington laws of 1931
was the part exacting a promise that the affiant would "by precept and example promote respect for the flag and the institutions of the United States of America and the State of Washington, reverence for law and order and undivided allegiance to the government of the United States." The Court held that to require teachers to make so broad a promise provided no "ascertainable standard of conduct" and required "more than a State may command." 377 U.S. at 372, 84 S. Ct. at 1322. The defect in Elfbrandt was not the oath required of state employees, see 384 U.S. at 12, 86 S. Ct. at 1239, but the statute subjecting to prosecution for perjury and to discharge from public office anyone who during his "'term of office or employment knowingly and wilfully becomes or remains a member of the communist party of the United States or its successors or any of its subordinate organizations or any other organization having for one of its purposes the overthrow by force or violence of the government of the state of Arizona or any of its political subdivisions." This was condemned as including "those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities * * *," 384 U.S. at 17, 86 S. Ct. at 1241, a position foreshadowed by Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 (1961). See also United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508 (1967); Haskett v. Washington, 294 F. Supp. 912 (D.D.C. 1968). Finally, what the Court struck down in Keyishian was a "complicated plan," 385 U.S. at 601, 87 S. Ct. 675, 17 L. Ed. 2d 629, imposing a variety of ill defined restraints on teachers in New York's public schools and colleges.
Rule 9406 is not an oath; the oath required to be taken upon admission to the bar, Judiciary Law § 466, is the "constitutional oath," New York Constitution, Art. XIII, § 1, "that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of, according to the best of my ability." The constitutionality of this oath is established by Knight v. Board of Regents, 269 F. Supp. 339 (S.D.N.Y.1967), aff'd per curiam, 390 U.S. 36, 88 S. Ct. 816, 19 L. Ed. 2d 812 (1968). Neither does Rule 9406 hang in terrorem over persons admitted to the bar, like the statutes condemned in Elfbrandt and Keyishian; it goes to belief at the time of admission only. The claim is rather that the alleged undue breadth of the Rule will have an unconstitutionally inhibiting effect on persons who contemplate seeking admission to the bar, notably law students, since they will fear lest becoming members in controversial organizations or engaging in protests will be taken to evidence lack of belief in the form of government of the United States or disloyalty to it.
If one assumes a proper implementation of Rule 9406, plaintiffs' apprehensions seem unwarranted. The Rule does not prescribe a formula to which the applicant must adhere but is rather a direction to the committees and the appellate divisions to guide them in performance of their functions under the statutory scheme. It instructs these bodies, before forwarding an applicant to take the constitutional oath, to satisfy themselves through analysis of the factual data before them of his belief in and loyalty to the government he will swear to support. Defendants interpret this command as directing them "to test whether applicants for admission can truly subscribe to the 'constitutional oath of office'"; they read "the form of the government of the United States" to mean exactly what comes within the oath of support, and "loyalty to such government" to mean ability to take the oath in good faith. This construction of the statute by the very agencies charged with its administration is commended by reason. Since those who authored Rule 9406 were quite as aware as we are that the First Amendment lies at the very heart of our "form of government," we should not lightly suppose they had any idea that applicants should be refused admission to the bar for exercising their constitutionally guaranteed rights to freedom of speech, peaceable assembly and petition for redress of grievances. Since they were likewise entirely aware that the Constitution contains Article V, providing for amendment, we will similarly not suppose they intended admission to be refused to applicants who advocate amendment, even very radical amendment, by lawful means. Accepting defendants' construction, as we do, we could hold Rule 9406 to be invalid on its face only if the Constitution makes it impermissible to give any scrutiny to whether an applicant can honestly take a lawfully required oath.
We do not read Bond v. Floyd, 385 U.S. 116, 87 S. Ct. 339, 17 L. Ed. 2d 235 (1966), as prohibiting all inquiry to that end. The Court there recognized that the state need not seat a legislator who "swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath." 385 U.S. at 132, 87 S. Ct. at 347. If the state may consider declarations or manifestations made contemporaneously with the taking of the oath, by the same token it may make a reasonable inquiry whether the oath taker is not in fact engaging in a solemn farce. The holding was rather that the information gathered by the special committee of the Georgia legislature had no sufficient tendency to negate Mr. Bond's position that he could conscientiously take the oath.
We therefore hold that Rule 9406 is not unconstitutional if implemented in accordance with its purpose. Before we proceed to plaintiffs' contentions concerning the questionnaires for its application prescribed by the Committees on Character and Fitness for the First and Second Departments, we must consider whether that subject is appropriate for adjudication by a court of three judges, 28 U.S.C. § 2281, or should be remitted to a single district judge.
The relevant statute, 28 U.S.C. § 2281, instructs, in "deceptively simple" terms, see Sardino v. Federal Reserve Bank of New York, 361 F.2d 106, 114 (2 Cir.), cert. denied, 385 U.S. 898, 87 S. Ct. 203, 17 L. Ed. 2d 130 (1966):
An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.
The defendants apparently concede that a court of three judges would be required if the character committees of all four judicial departments had prescribed the same questionnaire, or even if they had prescribed different ones but all were here attacked on similar grounds. The concession is well made since, apart from other possible bases for applicability of the statute, the attack would be upon "an order made by an administrative board or commission acting under [State] statutes," cf. Lathrop v. Donohue, 367 U.S. 820, 824-827, 81 S. Ct. 1826, 6 L. Ed. 2d 1191 (1961) (court order integrating state bar a "statute" within 28 U.S.C. § 1257), and it has long been settled that the ineptness of the 1913 amendment, 37 Stat. 1013, which added the reference to administrative orders but neglected to alter correspondingly the words "upon the ground of the unconstitutionality of such statute" should be overlooked. Oklahoma Natural Gas Co. v. Russell, 261 U.S. 290, 292, 43 S. Ct. 353, 67 L. Ed. 659 (1923). But defendants contend that since the questionnaires under attack cover only two of the four departments, the case comes within the judge-made exception to § 2281 excluding controversies not of state-wide importance. See Ex parte Collins, 277 U.S. 565, 567-569, 48 S. Ct. 585, 72 L. Ed. 990 (1928); Ex parte Public Nat'l Bank, 278 U.S. 101, 49 S. Ct. 43, 73 L. Ed. 202 (1928); Wilentz v. Sovereign Camp, 306 U.S. 573, 59 S. Ct. 709, 83 L. Ed. 994 (1939); Rorick v. Board of Com'rs, 307 U.S. 208, 59 S. Ct. 808, 83 L. Ed. 1242 (1939); Moody v. Flowers, 387 U.S. 97, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1967); Hatfield v. Bailleaux, 290 F.2d 632 (9 Cir. 1961); D. Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 31-34, 55 (1964); D. Currie, Federal Courts 535-37 (1968).
We disagree for several reasons, any one of which would suffice:
The first ground lies in the difference between an attack on the order of an administrator as such and on the statute as applied by him. The distinction admittedly is elusive since, on the one hand, as said in Phillips v. United States, 312 U.S. 246, 252, 61 S. Ct. 480, 484, 85 L. Ed. 800 (1941), "some constitutional or statutory provision is the ultimate source of all actions by state officials," and, on the other, no statute is self-enforcing. Whatever the difficulties of articulation, there is still a perceptible difference between a challenge to a governor's "single, unique exercise" of power, 312 U.S. at 253, 61 S. Ct. at 484, under a statute of unquestioned validity empowering him generally to call out the national guard in case of war or "any forcible obstructing of the execution of the laws or reasonable apprehension thereof, and at all other times he may deem necessary," and the continuing administrative implementation of a statute, itself under attack, which is constitutional if applied in one way and not if in another. To put the point in a slightly different way, if the administrator is interpreting legislative policy, even a local application requires three judges; if he is making policy under a delegation, his local action can be tested by a single judge. See for further discussion Sardino v. Federal Reserve Bank, supra, 361 F.2d at 115; D. Currie, supra, 32 U.Chi.L.Rev. at 37-55; D. Currie, Federal Courts 534-35 (1968).
The second ground is that the actions of the two character committees under authority of the appellate divisions are not truly "local" within the teaching of the cases we have cited. It is true that the regulations of the committee in each department bear directly only on applicants who, being residents there, are seeking admission through the process established for them. But the effect of admission or denial is state-wide; admission in one department is the key to lawful practice throughout the State.
Thirdly, even if the questionnaires should properly be regarded as local administrative action, we would nevertheless retain jurisdiction as a three-judge court. The Supreme Court, in Louisville & N.R.R. v. Garrett, 231 U.S. 298, 303-304, 34 S. Ct. 48, 58 L. Ed. 229 (1913), expressly upheld the jurisdiction of the three-judge panel over nonconstitutional questions affecting the validity of the orders also attacked on constitutional grounds. In Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80-81, 80 S. Ct. 568, 4 L. Ed. 2d 568 (1960), the Court restated the Garrett holding in an approving dictum, while deciding that the joinder of a nonconstitutional claim did not obviate the need for three judges on the constitutional one itself. Although both Garrett and Lime Growers concerned nonconstitutional attacks upon the same statute or order whose constitutional challenge required three judges, the same reasoning should apply when one attack is on the statute and the other on an order issued thereunder. In either case the overlap of evidence and argument is likely to be considerable. The policy of efficient use of judicial effort was pushed much further than this in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), where there was an encroachment upon state interests in determining issues not independently within federal cognizance. Since some issues raised by the complaints plainly call for three judges, there is not the compelling argument for judicial economy that exists when dissolution of the panel at the outset would save the energies of the two judges relieved from further duty. Furthermore to consign the questionnaires to a single judge would entail the prospect of separate appeals, one to the Supreme Court and the other to the Court of Appeals.
In Zemel v. Rusk, 381 U.S. 1, 85 S. Ct. 1271, 14 L. Ed. 2d 179 (1965), the Supreme Court entertained an appeal from three judges in a case we cannot distinguish from our own. The calling of three judges was there upheld because the plaintiff attacked the passport statute on the ground of unconstitutional delegation; the court below and the Supreme Court both considered, in addition, the contention that the Secretary of State's regulations under that statute were invalid. Perceiving the situation before it as no different from where the additional claim is a nonconstitutional attack on the same statute, the Supreme Court quoted from Lime Growers to establish that joining claims not themselves within the three-judge statutes does not dispense with the need for three judges for the consideration of all. See also Kurland, The Romero Case and Some Problems of Federal Jurisdiction, 73 Harv.L.Rev. 817, 838-45 (1960).
Finally, even if all the foregoing grounds should be wrong, and of course we do not think they are, we would nevertheless, in the exercise of discretion, continue to act together as regards the questionnaires. "Although a single district judge is without power to act in a case requiring three judges, the opposite is not true." Swift & Co. v. Wickham, 230 F. Supp. 398, 410 (S.D.N.Y.1964), appeal dismissed for want of jurisdiction, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965), aff'd, 364 F.2d 241 (2 Cir. 1966), cert. denied 385 U.S. 1036, 87 S. Ct. 776, 17 L. Ed. 2d 683 (1967). When the three-judge court has heard the entire case and lack of jurisdiction over one issue is at best debatable, sound policy calls for the three judges to decide that also, since a return of the issue to a single judge "would result in an invalid order if the return was erroneous, whereas the only consequence of erroneous retention of jurisdiction by the three-judge court is that the appeal should be taken to the Court of Appeals rather than to the Supreme Court, an uncertainty against which the plaintiffs may protect themselves by timely appeals to both courts." Id.
The questionnaires in use in the two departments have been the subject of recent changes which demonstrate that the Committees on Character and Fitness and the Justices of the Appellate Divisions are well aware of the need to bring them in line with developing concepts of First Amendment rights. The complaint in 68 Civ. 2938 attacked questionnaires issued to plaintiffs Wexler and Kaimowitz early in 1968 but these had been altered by the two departments in May before the actions were brought. After the commencement of the actions the appellate divisions deleted questions, set forth in the margin,
which would have raised exceedingly serious problems under Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960). See also Schneider v. Smith, 390 U.S. 17, 88 S. Ct. 682, 19 L. Ed. 2d 799 (1968).
The questions to which most strenuous objection is made are the following:
26. Have you ever organized or helped to organize or become a member of or participated in any way whatsoever in the activities of any organization or group of persons which teaches (or taught) or advocates (or advocated) that the Government of the United States or any State or any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means? If your answer is in the affirmative, state the facts below.
27(a) Do you believe in the principles underlying the form of government of the United States of America?
(b) Can you conscientiously, and do you, affirm that you are, without any mental reservation, loyal to and ready to support the Constitution of the United States?
Taking these in reverse order, we fail to see what valid objection can be made to question 27(b). This differs from the New York Constitutional oath sustained in Knight v. Board of Regents, supra, 269 F. Supp. 339, aff'd, 390 U.S. 36, 88 S. Ct. 816, 19 L. Ed. 2d 812, only in the inclusion of two additional phrases, "without any mental reservation" and a declaration of loyalty. The former phrase is included in the oaths all of us have taken as judges, and we cannot perceive any proper reason why any applicant for admission to the bar should cavil over it. We likewise find it impossible to see why requiring a future lawyer to declare his loyalty to the Constitution should be deemed objectionable when a promise to support it is not.
The suggestion that a prospective lawyer would fear that a declaration of loyalty to the Constitution would prevent his criticizing acts of the Government does not require discussion.
Question 27(a) is alleged to be impermissibly vague. It is claimed, for example, that an applicant might think he could not respond in the affirmative if he did not believe in the electoral college or a bicameral legislature. There is enough substance to this objection that we think the question should be eliminated or altered. The phrase "principles underlying the form of government," as distinguished from the simpler phrase used by Rule 9406 in addressing the appellate divisions and the committees, might be understood by an applicant to include many "principles" of a lower order than the essentials, democratic government and change by lawful methods. One who favored drastic reforms, albeit through constitutional means, might perhaps feel unable conscientiously to answer with a simple "yes;" yet the format of the question affords no additional space for explanation and the word "principles" is so vague as to create a problem even if opportunity for explanation were afforded. The question thus may share the defect of the oath in Whitehill v. Elkins, 389 U.S. 54, 88 S. Ct. 184, 19 L. Ed. 2d 228 (1967), which the Supreme Court found capable of being read to require the affiant to disclaim any desire to "alter" the government by peaceful "revolution." It seems unnecessary to require such an imprecise declaration from an applicant for admission to the bar. Defendants say the question is intended merely to be "subsidiary to and supportive of" the constitutional oath; while we have held that the state can permissibly make some inquiry into the applicant's ability sincerely to take the oath, this purpose can be served by more circumscribed questions, such as 27(b) and the various factual questions contained throughout the questionnaires. Question 27(a) should thus be deleted or rephrased to remove the imprecision we have noted.
Question 26 also raises a difficult problem. Plaintiffs rely on cases such as Baggett, Elfbrandt, and Keyishian, cited in section III of this opinion, and also on Shelton v. Tucker, supra, 364 U.S. 479, 81 S. Ct. 247, and Schneider v. Smith, supra, 390 U.S. 17, 88 S. Ct. 682. Defendants distinguish the former as involving statutes that set up a bar to employment or decreed a termination of it, all in the field of teaching where the First Amendment dictates "particular concern for the safeguarding of academic freedom," Haskett v. Washington, supra, as contrasted to the mere inquiry here. They distinguish Shelton and Schneider upon the breadth of the questions asked. Defendants assert in the first instance that the principle remains sound that in order to protect "some interest clearly within the sphere of governmental concern" a state may "deny positions to persons supposed to be dangerous because the position might be used to the detriment of the public." Speiser v. Randall, supra, 357 U.S. at 527, 78 S. Ct. at 1343. In Gerende v. Board of Supervisors, 341 U.S. 56, 71 S. Ct. 565, 95 L. Ed. 745 (1961), for example, the Court sustained a requirement that a candidate for public office swear that he was not engaged "'in one way or another in the attempt to overthrow the government by force or violence,' and that he is not knowingly a member of an organization engaged in such an attempt." Further, although what is within the state's power of exclusion is necessarily within its power of inquiry, defendants argue that the latter is broader since the state is entitled to information from which it may develop that a person has in fact engaged in conduct justifying a bar to office that he has not been willing to admit. With respect to the scope of inquiry, Question 26 does not approach the requirement struck down in Shelton that every associational tie be disclosed, a requirement the Court held to be too indiscriminate in its sweep. The decisions in Beilan v. Board of Public Education, 357 U.S. 399, 78 S. Ct. 1317, 2 L. Ed. 2d 1414 (1958); Lerner v. Casey, 357 U.S. 468, 78 S. Ct. 1311, 2 L. Ed. 2d 1423 (1958); Nelson v. County of Los Angeles, 362 U.S. 1, 80 S. Ct. 527, 4 L. Ed. 2d 494 (1960); Konigsberg v. State Bar of California, supra, 366 U.S. 36, 81 S. Ct. 997, 6 L. Ed. 2d 105 and In re Anastaplo, 366 U.S. 82, 81 S. Ct. 978, 6 L. Ed. 2d 135 (1961), demonstrate that the Constitution does not prohibit a state from asking a public official or a candidate for admission to the bar whether he was ever a member of the Communist Party or, as in the Nelson case, of other organizations known to the member to advocate violent overthrow of the government.
The most obvious problems with Question 26 are the parenthetical past-tense verbs. While the draftsman probably intended these to relate to the period of the applicant's membership, this is not made clear; the question could be read as requiring an applicant to report membership in an organization that advocated overthrow of the Government of the United States in 1860 but now would defend every syllable of the Constitution. The question should be corrected to clarify that the organization's teaching or advocacy of violent overthrow must have coincided in time with applicant's membership - a correction to which we cannot conceive the defendants would object. The next issue is whether the question must be further limited to cases where the applicant knew of the teaching or advocacy. Defendants do not assert they could constitutionally exclude applicants unless this was shown; their contention is rather, as noted above, that they should be permitted to frame their inquiry more broadly, that an applicant making an affirmative answer will be free to qualify this, and that the committees and the appellate divisions will then be in a position to determine the truth of the disclaimers. While there is force in this, no Supreme Court decision has gone beyond sustaining inquiry into membership in organizations known to the member to advocate forceful or violent overthrow, or in the Communist Party whose advocacy is evidently deemed a matter of common knowledge. We are not disposed to sanction inquiries of greater scope. Although Sweezy v. New Hampshire, 354 U.S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957), could be distinguished as involving a sweeping legislative inquiry not limited to public employees or applicants for admission to the bar, it indicates the Court's aversion to questions concerning associations in the absence of scienter. The prospect of having to respond to an inquiry like Question 26 might have a deterring effect on exercise of the constitutionally protected right of association, and this can be justified only when "the subordinating interest of the State" is "compelling," Sweezy v. New Hampshire, supra, 354 U.S. at 265, 77 S. Ct. at 1219 (concurring opinion of Frankfurter, J.) - a test applied in Bates v. Little Rock, 361 U.S. 516, 524, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960) and NAACP v. Button, 371 U.S. 415, 439, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). The state's interest in informing itself of the prior associations of candidates for the bar with subversive organizations can be adequately protected by a question more narrowly phrased. See Nelson v. County of Los Angeles, supra, 362 U.S. at 2-3 & n. 1, 80 S. Ct. 527.
Plaintiffs also attack Question 31. In the First Department this reads:
Is there any incident in your life not called for by the foregoing questions which has any favorable or detrimental bearing on your character or fitness? If the answer is "Yes" state the facts.
In the Second Department the words "favorable or" are omitted. Plaintiffs contend that this catch-all has a serious in terrorem effect, especially in light of the directions at the head of the application:
1. This is a statement made under oath. Applicant's failure fully and accurately to disclose any fact or information called for by any question may result in the denial of the application for admission, or if applicant shall have been admitted before the discovery thereof, in the revocation of his license to practice law.
We agree. The committees and the appellate divisions should be able to frame specific questions adequate to elicit the information they need; indeed they have demonstrated in the 31 other questions what plaintiffs consider an excessive ability in that regard. We find no interest of the state sufficiently compelling to require an applicant to engage in the soul-searching of his entire past life demanded by Question 31.
We take a different view with respect to the last question requiring discussion in the text of this opinion:
32. (a) Have you read the Canons of Ethics adopted by the American and New York State Bar Associations?
(b) Will you conscientiously endeavor to conform your professional conduct to them?
The objection is to (b); plaintiffs contend that an applicant may conscientiously disagree with various Canons, which currently are being revised, and still deserve admission to the bar. We agree with that position but not with the conclusion plaintiffs draw from it. There is no vagueness here of the sort we found in Question 27(a); an applicant who has read the Canons knows just what standards he is being asked about. If he dissents from a particular Canon, he need only say so and explain why. We have been cited no evidence that such dissent on a reasoned basis would bar admission.
Finally, plaintiffs attack generally the practice of the committees of conducting individual personal interviews with applicants, at which, among other things, questions are posed "on the basis of the applicant's answers to the questionnaire." Plaintiffs allege that the scope of this questioning is sometimes so broad as to constitute an unwarranted invasion into the applicant's personal and political privacy. We do not understand plaintiffs to deny that a personal interview can be a permissible and very helpful aid to the committees in judging fitness for admission to the bar. Rather, their complaint goes to the scope of interviews conducted at a time when the questionnaires included inquiries since deleted or here disapproved by us. We have no reason to assume that as the scope of the committees' written inquiry is contracted, there will not be a similar adjustment in the focus of their spoken questions.
We must now consider the appropriate disposition in light of the foregoing discussion. While we have power to issue an injunction against use of the questionnaires until Questions 26, 27(a) and 31 are omitted or rephrased and against resumption of use of the questions that have been discontinued, see, e.g., fn. 6, we find no immediate occasion for doing so. Although "the court's power to grant injunctive relief survives discontinuance of the illegal conduct," United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 897, 97 L. Ed. 1303 (1953), a court is not required to award it, as that case demonstrates. Counsel for the character committees emphasized at the argument that "these State Courts are not stiff-necked about this thing." Considerations of comity to respected fellow-judges suggest they should be afforded a reasonable opportunity to reflect on our conclusions and perhaps take action that may obviate any occasion for an injunction. Law students will not suffer any serious chill during this brief interval, when the ultimate result is so clear. We believe also that if the three plaintiffs who have passed the examinations and have refused to fill out the questionnaires should decline to answer Questions 27(a) and 31 and answer Question 26 only as limited to membership in organizations known to them to be then teaching or advocating overthrow of the Government by force or violence, they would not find obstacles in their way; if our expectation should prove unfounded, they may apply to us for relief.
We shall therefore hold all motions until such date, not later than ninety days from the entry of this opinion, when counsel for the defendants shall report in writing what action, if any, the appellate divisions have taken. Such report shall be served upon plaintiffs' counsel; within twenty days thereafter, they may, if so advised, serve and file appropriate papers with respect to what further relief, if any, they deem required; the defendants shall answer within fifteen days. If counsel desire an opportunity for further argument, we will assign a date.
It is so ordered.