In re Cassidy

Per Curiam. The Committee on Character and Fitness of the Second Judicial District, by a divided vote of five to two, have certified that in their opinion the above-named applicant possesses the necessary character and fitness to become a member of the Bar of this State and have recommended that he be admitted. The members of the Committee reached their conclusions after devoting many days to hearing the testimony pro and con and many more days to the consideration of the voluminous papers presented. The record discloses the great length of time spent by them. The individual reports of the Committee members show their painstaking care. The members of the Committee do this work voluntarily and without compensation. The court and the entire Bar of the Second District are under a very deep obligation to the Committee. It is a pleasure for the members of the court to make their appreciation a matter of record, even though in this instance the majority of the court is constrained to differ with the majority of the Committee and to agree with the minority in its finding and recommendation. An applicant may be admitted to the Bar only if this court “ shall be satisfied that such person possesses the character and general fitness requisite for an attorney and counsellorat-law * * (Judiciary Law, § 88, subd. 1.) The possession of such character and the possession of such fitness are conditions precedent. Membership in the Bar is not a right; it is a privilege burdened with the specified statutory conditions which, as to every proposed new member, must be met at the time of admission. (Cf. Matter of Rouss, 221 N. Y. 81, 84; Judiciary Law, § 88.) Even if we disregard the oral testimony, the import of the undisputed documentary evidence establishes the applicant’s belief in the resort to force to overthrow the existing form of government of the United States. These documents were not in evidence at the applicant’s trial in the Federal court in 1940 on the charge of conspiracy to overthrow the government, where he was acquitted. They were submitted for the first time at the hearings before the Committee. They consist of: (1) the applicant’s private notes of speeches which he subsequently delivered (App. Exs. 4C, 4J, 4M and 4U); (2) copy of a letter, dated September 13, 1939, which the applicant addressed to the Reverend Charles E. Coughlin (in the record without exhibit number); (3) the copy furnished by the applicant of a speech which he made in Philadelphia on November 24, 1941, [285] at a meeting of the Christian Front (App. Ex. 11); and (4) a verbatim transcript of statements made by the applicant in a speech on March 1, 1939 (Complainants’ Ex. D). The record discloses that the applicant believes.there is need for changing the structure of our government. With his views in this respect we have no concern, nor with his methods, so long as they are legal and constitutional. The documentary evidence demonstrates, however, (a) that the applicant is convinced that the constitutional processes are inadequate to effect the changes which he considers necessary or desirable in our existing form of government; (b) that the applicant deliberately advocated and counseled the unlawful formation of armed units for use against what he considered subversive elements; and (c) that if the government failed to act promptly to suppress such subversive elements these privately organized armed units should take the law into their own hands and act independently without regard to the government. Conceding that the applicant was sincere in his avowed purpose of preparing to suppress an imminent insurrection, the means which he advocated were directly contrary to both the State and Federal Constitutions and statutes. (U. S. Const., art. I, § 8, art. IV, § 4; National Guard Acts, U. S. Code, tit. 32, § 17 et seq.; N. Y. Const., art. XII, § 3; Military Law [State], § 241 et seq.; 1941 Atty. Gen. 390; Hamilton v. Regents, 293 U. S. 245; Presser v. Illinois, 116 U. S. 252, 267-268.) The plain and inevitable effect of the consummation of the applicant’s plans or beliefs would be to displace our constitutional form of government and to permit him and his associates to arrogate to themselves the powers of the government. No matter how altruistic the claimed motive may be, such a plan clearly is illegal. (Cf. People v. Gitlow, 195 App. Div. 773, 782, affd. 234 N. Y. 132; Penal Law, §§ 160-162.) The applicant has the right, of coursé, to advocate that the Constitution be changed and that those charged with the administration of the government be removed from office. “ One of the prerogatives of American citizenship is the right to criticize public men and measures — and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.” '(Baumgartner v. United States, 322 U. S. 665, 673.) This is the right of free speech which is guaranteed to every person by the first amendment to the Federal Constitution. But this right contemplates only the advocacy of legal and constitutional means of change. It is lost when it is abused by urging the use of [286] illegal and unconstitutional methods. (Cf. People v. Gitlow, 195 App. Div. 773, 785-789, affd. 234 N. Y. 132; Hartzel v. United States, 322 U. S. 680, majority and minority opinions.) In an effort to justify Ms beliefs and the methods he advocated to make them effective, the applicant professed to rely upon the second amendment to the Federal Constitution. Indeed, in Ms letter of September 13, 1939, he expressed his “ jubilation that there is the Second Amendment.” That amendment, however, does not grant a license to carry arms. “ The right to keep and bear arms is not a right conferred upon the people by the federal constitution.” (Cases v. United States, 131 F. 2d 916, 921; United States v. Cruikshank, 92 U. S. 542, 553; People ex rel. Barling v. Warden of City Prison, 154 App. Div. 413, 420; Presser v. Illinois, supra.) Before the Committee the applicant stated (Minutes, pp. 195-196) that the armed units he advocated were intended to be placed at the disposal of the government in suppressing a threatened insurrection. Conceding the bona fides of such belated expression of intention, the very fact that he advocated the creation of such a private army demonstrates Ms unfitness to become a member of the Bar of this State. There can be no justification for the organization of such an armed force. Its existence would be incompatible with the fundamental concept of our form of government. The inherent potential danger of any organized private militia, even if never used or even if iiltimately placed at the disposal of the government, is obvious. Its existence would be sufficient, without more, to prevent a democratic form of government, such as ours, from functioning freely, without coercion, and in accordance with the constitutional mandates. The record also demonstrates that the applicant lacks that Mgh standard of veracity required of an officer of the court. Many contradictions and inconsistencies appear in his statements. It will suffice to make reference to only three of such contradictions and to cite the page numbers of the record where they may be found: (1) As to the proposed bombing or dynamiting of a certain building: Compare the applicant’s various statements at the Federal trial. (Digest of Minutes, pp. 89-90; Minutes, pp. 3631-3632; 3635-3636; 3640; 3650.) (2) As to the proposed manufacture of bombs: Compare the applicant’s statements before the Committee (Minutes, pp. 687-690) and at the Federal trial (Minutes, pp. 3633-3634) with his other statements at that trial. (Digest of Minutes, [287] pp. 85, 90; Minutes, pp. 3544-3547; 3629-3630; 3633-3634; 3637; 3650; 3653-3654.) (3) As to the applicant’s condemnation or denunciation oí a part of our citizenry: Compare the applicant’s statements before the Committee (Minutes, pp. 150, 236-237) and at the Federal trial (Minutes, p. 3399) with the applicant’s statements in his own original notes. (App. Ex. 4V.) There exists no constitutional inhibition against any person’s, if he so desires, becoming a religious bigot and a sower of religious bigotry, provided he does not interfere with the exercise of religious freedom by others. In determining the fitness of a candidate for admission to the Bar this court has never given any consideration to his religious belief, the lack of such belief, or to his religious intolerance. Attacks upon organized religion of any faith are regrettable exhibitions of the lack of true religious convictions or the lack of any religious faith at all. But with that phase of an applicant’s character this court is not concerned. And in the present case, as well as in the irrelevent case cited in the dissenting opinion, no consideration was given to the applicant’s alleged denunciation of any religious or racial group. We are not unmindful that the applicant has been acquitted by a jury after trial in the Federal court upon an indictment charging him with conspiracy to overthrow the government of the United States. But acquittal in a criminal action cannot he deemed to be res judicata here upon any issue, for the purpose and scope of an inquiry to determine an applicant’s character and fitness to become a member of the Bar are essentially different. (Cf. Matter of Kane v. Rudich, 256 App Div. 586, 587; Matter of Hardenbrook, 135 App. Div. 634, 636; People ex rel. Wood v. Department of Health, 144 App. Div. 628, affd. 202 N. Y. 610.) Conduct not descending to the level of guilt of the violation of a criminal statute may well present an insuperable obstacle to admission to the Bar if such conduct evinces a lack of that “ character and general fitness requisite for an attorney and counsellor-at-law ”. (Judiciary Law," § 88, subd. 1.) Accordingly, the application must be denied.