Appeal, No. 208, March T., 1960, from order of Court of Common Pleas of Allegheny County, July T., 1957, No. 1608, in the matter of Hymen Schlesinger. Order reversed; reargument refused July 31, 1961.
John K. Tabor and Richard B. Tucker, Jr., with them Charles F. C. Arensberg, John G. Buchanan, Louis Caplan, Thomas N. Griggs, Louis C. Glasso, and James Craig Kuhn, Jr., for appellant.
Robert A. Rundle, with him Francis Taptich, for appellee.
Samuel M. Koenigsberg, of the New Jersey Bar, and Norman Leonard and Ewing Sibbett, for National Lawyers Guild, amicus curiae.
Before Jones, C.j., Bell, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
Hymen Schlesinger, the appellant, was admitted to the bar of Allegheny County on September 24, 1927, and, continuously thereafter engaged in the practice of law in that county with offices in the City of Pittsburgh. On May 26, 1950, the Committee on Offenses of the Court of Common Pleas of Allegheny County lodged with him a written complaint charging him with "professional misconduct." As a result of hearings on the complaint, held by a Subcommittee of the Committee on Offenses, the Court of Common Pleas of Allegheny County ten years later (viz., on May 10, 1960) entered an order disbarring Schlesinger on the basis of the
report and recommendation of the Committee on Offenses. The principal charge against the respondent was that he had violated his oath as an attorney by being a member of the Communist Party. No charge was made nor proof adduced that he had ever been guilty of unprofessional conduct in his relations with any of his clients or with the courts. Upon his appeal to this court from the order of disbarrment, we entered an order on May 23, 1960, upon his petition for a supersedeas, suspending the order of disbarrment until final disposition of the appeal, which is now before us for that purpose.
A recital of the proceedings, somewhat in detail, is essential to a proper understanding and consideration of the important questions presented by the record. Moreover, it is our bounden duty under Section 1 of the Act of May 19, 1879, P.L. 66, 17 PS § 1663, to review the case de novo.
The complaint filed with Schlesinger by the Committee on Offenses on May 26, 1950, specifically charged him with "professional misconduct" (a) "[by] being a member of the Communist Party, one of the major aims and purposes of which party is the overthrow of the Government of the United States by force and violence", (b) "[by] acting as a party functionary in connection with the activities of the Communist Party in the City of Pittsburgh, Pennsylvania, and in that capacity assisting in the formulation and the carrying out of party policies, especially with reference to the organization and control of basic industries in the Pittsburgh district," and (c) "[by] actively advocating and supporting the aforesaid aim and purpose of the Communist Party to overthrow the Government of the United States by force and violence in derogation and in violation of the oath taken by Respondent upon his becoming a member of the bar of the Court of Common Pleas of Allegheny County, Pennsylvania."
A motion to dismiss the complaint was filed by the respondent.
On September 29, 1950, the Committee on Offenses appointed a Subcommittee of three of its own members to hear argument on the motion to dismiss the complaint and to make a report to the Committee. Thereafter, the subcommittee recommended that the motion to dismiss be denied and that the respondent be directed to file an answer to the complaint. This recommendation was in due course approved by the Committee. On June 6, 1951, a request for a bill of particulars was filed with the Committee on Offenses by the respondent. This request was denied. The respondent then challenged for cause each and every member of the Committee on Offenses because, inter alia, of their conflicting capacities. This challenge was also denied.
Before a date for a hearing on the complaint had been fixed by the Subcommittee, an information was filed by one Matt Cvetic with a justice of the peace in the county charging the respondent with a violation of the Pennsylvania Sedition Act of 1951, on which charge the respondent was held for court. As the allegations of Cvetic in his information against Schlesinger were similar to the charges in the Committee's complaint against him, the Subcommittee took no action with respect to a hearing on the complaint while Cvetic's criminal prosecution of the respondent was pending. The criminal proceeding was quashed on December 11, 1951, by three judges of the Court of Common Pleas, sitting en banc, for the stated reasons that "our judicial criminal procedure was ignored if not flaunted," that "the defendant was denied his state constitutional and statutory rights and protection," and that "the admitted activities or nonactivities following his arrest denied to the defendant due process of law and equal protection of the law under the 14th Amendment of the United States Constitution."
Nothing further, in respect of the Committee's complaint, appears to have been done following the quashing on December 11, 1951, of the criminal proceeding instituted by Cvetic until May 1, 1953, when the Subcommittee gave notice to the respondent of a hearing on the complaint. The hearing was still further delayed, however, for about eight months because of the respondent's unsuccessful attempts to enlist at that time the services of counsel in his behalf. It is a lamentable commentary, but none the less true, that, in the existing frame of the public mind, a lawyer who undertakes voluntarily the legal representation of a person charged with being, or even pointed at (in J'accuse fashion) as, a Communist runs the risk of a disruption of his law practice and the impairment of his own professional reputation.
In any event, hearings on the Committee's complaint were begun and proceeded with before the Subcommittee on various dates in January, February and August of 1954, the respondent then being unrepresented by counsel. Further hearings were held on February 9, 17 and 22, and March 22, 1955, for the purpose of receiving testimony of witnesses produced by respondent, who was still without counsel other than himself.
After the final hearing on March 22, 1955, and as a result of respondent's supplication of the Allegheny County Bar Association, among other civic or public bodies, a group of attorneys agreed to act as counsel for respondent under appointment by the Court of Common Pleas; and, on June 1, 1956, eight capable and highly regarded lawyers, consisting of four seniors and four juniors, were appointed by the Court of Common Pleas to represent the respondent. Since then, the services of these attorneys in their faithful and zealous representation of their client, including their able brief and oral argument in this court, have been in the finest traditions of the profession, e.g., that legal representation shall not
be denied anyone called to answer a charge against himself in an American court of justice.
Summations and oral argument on the basis of the testimony previously adduced at the hearings before the Subcommittee were made before that body on September 22, 1956, by counsel for the Committee and by respondent's lately appointed counsel, and brefs were filed. Thereafter, the Subcommittee filed its report finding that the respondent was a member and functionary of the Communist Party and concluded therefrom that he had been guilty of professional misconduct "in that he has violated the oath administered to him at the time of his admission to the Bar." The Subcommittee accordingly recommended that respondent be disbarred. On April 15, 1957, the Committee on Offenses adopted and filed in the Court of Common Pleas the report and recommendation of the Subcommittee recommending the respondent's disbarrment.
Exceptions to the report and recommendation were filed by counsel on behalf of the respondent. These exceptions were argued before a court en banc, consisting of three judges of the Court of Common Pleas of Allegheny County, on December 18, 1957. Two and a half years later, viz., May 3, 1960, the court en banc (one member having died in the meantime) filed an opinion dismissing respondent's exceptions and recommending to the Board of Judges of the Court of Common Pleas (consisting of sixteen members) that the respondent be disbarred, and on May 10, 1960, the Board of Judges adopted the recommendation of the court en banc and entered the order disbarring Schlesinger, which is the subject of the present appeal.
The Subcommittee had opened its case at the first hearing by introducing in evidence the oath, which respondent took upon his admission to the bar, as follows: "You do solemnly swear that you will support the Constitution of the United States and the Constitution
of this Commonwealth and that you will behave yourself in the office of attorney within this court to the best of your learning and ability, and with all due fidelity as well as to the court as to your client, that you will use no falsehood nor delay any person's cause for lucre or malice and that as you shall answer to God at the last great day."
The Committee then called the respondent, who was unrepresented by counsel, as for cross-examination, but, upon his objection that it was premature to require him to testify when no case against him had been developed, the Committee deferred taking his testimony until after its witnesses, viz., George Dietze, Joseph Mazzei, Mary Mazzei and Matt Cvetic, had been called to testify. These witnesses were the only persons produced by the Committee to support the charges of the complaint.
Subsequent to the hearing, the veracity of one of these witnesses, Joseph Mazzei, was "wholly discredited" by disclosures of the Solicitor General of the United States in connection with a case then pending before the Supreme Court of the United States. See Mesarosh v. United States, 352 U.S. 1 (1956). The Subcommittee, in its report, stated that its decision and findings "do not depend upon the testimony of Joseph Mazzei." But, apparently, the Subcommittee had not entirely disabused its mind of Mazzei's testimony, for a summarization of it was included in the Subcommittee's report. However, the brief for the full Committee in this court contains the following confirmatory rejection of Mazzei's testimony: "before its Report was filed, the Subcommittee had knowledge of the opinion of the United States Supreme Court in the case of Mesarosh, alias Nelson, et al. v. United States, 352 U.S. 1, (1956), impeaching Mr. Mazzei as a reliable witness and the Subcommittee disregarded the testimony of Mr. Mazzei in arriving at the Findings of Fact contained in its
Report (108 P.L.J. 166)." Rightly, therefore, Mazzei's testimony must be rejected as wholly untrustworthy.
The brief for the Committee also concedes that Mrs. Mazzei's "testimony generally was not significant to the issue in this case". Consequently, support for the Committee's charge against respondent is left to rest solely on the testimony of the Committee's two remaining witnesses, George Dietze and Matt Cvetic.
Dietze testified that he was employed by the FBI from January or February of 1940 to March, 1950, and that, pursuant to such employment, he became a member of the Communist Party in March, 1944. At that time he was a piano teacher and, from 1939 to May, 1949, had his place of business at 440 Wood Street, Pittsburgh. He testified on direct examination that various Communist organizations met there on occasion; that he acted as door keeper for such meetings; that the respondent attended about fifteen meetings of the Tom Paine Club, which Dietze described as a branch of the Communist Party, during the years 1946 to 1948; and that such meetings were closed to persons other than members.
On cross-examination, Dietze testified that he let in anybody who came to the door. "I was up there and let everybody in for meetings and who they were I don't know," he explained. He testified that other groups held meetings at his place of business, including the International Workers' Organization, the Progressive Party, and the Civil Rights Congress. He conceded that he did not know one group from another or the connection between the persons he admitted and the various groups. He extenuated, - "You see, I might villify myself. You see, I couldn't ask anybody who of those groups come up, because this was quite a danger - not a danger, but they would get suspicious, what are the interests of yourself in what is going on? You see, after all, the FBI told me, 'Now, you just let them in
and out and see what you can see.' 'After all, we wired your place and we have all the evidence up there, we know what is going on.' And, for my part, as I said, probably I want to mention this now too, I wasn't sitting in these meetings either..." At another point in cross-examination by the respondent, Dietze said, "Mr. Schlesinger, I told you lots of organizations came up... I can't inquire or ask these people, who are you, what is the name of your organization, and I tried it once, and of course, you know, 'It's none of your business', and so and so on. Since this place was so occupied during the six years on 440 Wood Street I certainly could not put my nose into each individual group and ask questions, so and so on. And so I just looked at it, because, after all, the FBI know it, they know that." Dietze further testified that he did not know what took place at the meetings which he said the respondent attended, that he, himself, never attended any such meetings, that he did not know whether the respondent held any position or office in the Communist Party, and that he never discussed Communist matters with him. By the time Dietze concluded his testimony, very little, if anything, of probative value was left.
The remaining witness produced by the Committee was Matt Cvetic. He testified that he was employed by the FBI from the spring of 1941 to February, 1950, and that, pursuant to such employment, he became a member of the Communist Party in February, 1943, and was assigned to the Tom Paine branch of the Party. He testified he attended many meetings of Communist groups with the respondent. Most of these meetings concerned the Civil Rights Congress which Cvetic described as "a legal arm of the Communist Party." In answer to a question from the Subcommittee, Cvetic admitted that the Civil Rights Congress included many persons who were not Communists and, on cross-examination, admitted that a number of the Congress's principal
officers were not Communists. He testified that the principal activity of the Civil Rights Congress was to supply defense counsel in cases involving members of the Communist Party and other minority groups.
Schlesinger was charged, as already stated, with being a "functionary" of the Communist party. In support of the charge, the Subcommittee permitted Cvetic to define the word "functionary" and then to give his opinion that the respondent came within Cvetic's personal definition. Having stated that "[a] Party functionary is one who is active in a certain phase of Communist activity," Cvetic then testified that "Mr. Schlesinger was a member of the Legal Commission of the Communist Party, he would be a Communist Party functionary, one who is functioning in this capacity." Thus, the respondent was charged with an activity not defined until the hearing thereon when the Committee permitted it to be defined by the witness called to testify to the charge against the respondent. Cvetic also testified that he collected respondent's Communist Party dues on several occasions.
The respondent sought to cross-examine Cvetic in order to show his bias, prejudice, interest and general antagonism toward the respondent and also to lay the groundwork for impeaching the witness' credibility in various particulars, especially in his self-contradictory statements. However, the Subcommittee severely restricted the respondent's attempted cross-examination of Cvetic by rejecting most of his offers of proof and requests in such connection.
At the conclusion of Cvetic's testimony, the Committee again called the respondent, who was still uncounseled, as for cross-examination. He testified as to his residence, his admission to the bar and the location of his offices, but refused to answer any questions concerning his alleged membership in or connection with the Communist Party (1) on the ground that the Committee
had no right to inquire into his political beliefs, ideas, affiliations or associations because of the protection afforded him by the First Amendment of the Federal Constitution and the cognate section of the State Constitution, and (2) on the ground of privilege against self-incrimination under the Fifth Amendment to the Federal Constitution and, also, under the State Constitution.
Respondent called a number of character witnesses who testified to many years' acquaintance with him, and to his good reputation for honesty, reliability, generosity, loyalty and patriotism. None of these witnesses had ever known appellant to say or do anything disloyal or subversive.
The right to practice law is constitutionally protected as a property right and no attorney can lawfully be deprived of such right except by due process of law and upon competent and relevant proofs sufficiently credible to support a just order of disbarrment.
The Supreme Court of the United States recognized long ago that "The attorney and counselor, being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor.... It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency." Ex Parte Garland, 71 U.S. 333, 379 (1886). In Schlesinger Petition, 367 Pa. 476, 481, 81 A.2d 316 (1951), we had occasion to declare that the right to practice law is a right so valuable that it "'may neither be extinguished, abated nor dismissed by any proceeding short of one which fully comports with the historical and constitutional requisites of due process.'"
The record in the instant case plainly discloses that the appellant was deprived of his constitutional right to practice his profession by the order of disbarrment entered by the court below as the result of a proceeding which manifestly violated the requirements of due process
in that the respondent was not afforded the full, fair and impartial hearing to which he was entitled.
The functions of prosecutor, judge and jury were combined in one body, namely, the Committee on Offenses, which lodged and prosecuted and, through its Subcommittee of three of its own members, adjudicated the charge of unprofessional conduct whereon the Court of Common Pleas, without any hearing of witnesses, ultimately entered the order disbarring the appellant. The full Committee on Offenses consisted of fifteen members of the Bar of Allegheny County, jointly appointed by the President Judge of the Court of Common Pleas of the County and the President of the Allegheny County Bar Association. This Committee, acting on its own initiative, lodged with Schlesinger the complaint charging him with "professional misconduct." The Committee appointed counsel to prosecute, on its behalf, the charges before its Subcommittee, to which the Committee referred the complaint for hearing, report and recommendation thereon. The appellant challenged for cause each of the members of the Committee on the ground, inter alia, that "Each said member individually and jointly with all other members of the Committee is a complaining party herein and is attempting to sit in judgment upon his own cause." The challenge was rejected. The Committee, as prosecutor, called and examined its witnesses against the appellant and vigorously conducted an adversary proceeding against him before its own Subcommittee which, as judge, presided over the hearings, passed upon the credibility of the witnesses, determined the inferences to be drawn from their testimony, and deduced therefrom the facts which it found. The Committee also passed upon and approved the quantum of compensation to be paid its witnesses.
In In Re Murchison, 349 U.S. 133, 136 (1955), the Supreme Court, in reversing two convictions for contempt
of court, declared that "A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this and no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.... This Court has said... that 'every procedure which would offer a possible temptation to the average man as a judge... not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.' Tumey v. Ohio, 273 U.S. 510, 532."
Here, a member of the bar, charged with unprofessional conduct by a bar Committee on Offenses, was prosecuted on the Committee's complaint before a Subcommittee, composed of three members of the Committee, sitting as the trial tribunal. In such a procedure, so contrary to traditional American juridical concepts, unfairness was, ipso facto, inherent; it was fraught with the possibility of temptation to each member of the trial tribunal to favor, consciously or unconsciously, the prosecuting body which appointed him and of which he was a member. The record as a whole contains a reasonable basis for doubt as to whether impartiality on the part of the members of the tribunal was completely absent and suggests an unsympathetic predisposition toward the appellant. Moreover, a predilection to favor one side over the other is not required in order to vitiate a judicial proceeding as being violative of due process. Merely, "a possible temptation to the average man as a judge... not to hold the balance nice, clear and true" is sufficient. Such "a possible temptation" was implicit in the proceeding before the prosecutor's own Subcommittee which resulted in appellant's disbarrment.
In Blenko v. Schmeltz, 362 Pa. 365, 67 A.2d 99 (1949), the President of the Board of Managers of the Patent Law Association of Pittsburgh wrote Blenko, a member of the Association, a letter notifying him that his conduct in connection with a transaction with the Patent Office had been investigated by the Board and that, unless he resigned from the Association and as a member of the bar of all courts before which he was eligible to practice, proceedings for his expulsion on the ground of unprofessional conduct would be held before the Board. On appeal to this Court, we reinstated a preliminary injunction restraining the Board of Managers from conducting such a proceeding on the ground that "the defendant board, in violation of elementary principles, was acting as prosecutor and trial tribunal at the same time." In like manner, here, the Committee on Offenses, in violation of "elementary principles" of fairness, acted as prosecutor while at the same time a Subcommittee of its own members was sitting in judgment on the Complaint as the trial tribunal.
The court below, in an effort to justify the procedure pursued by the Committee on Offenses and its Subcommittee in this case, cited Montgomery County Bar Association v. Rinalducci, 329 Pa. 296, 197 A. 924 (1938), where we approved the "reference of disbarrment hearings to committees and the like." But we have never, in the Rinalducci case or in any other case, approved a merger of the prosecuting and judicial functions in one body. Such a question was not even raised in the Rinalducci case, much less passed upon. The procedure followed by the Committee in the present case differs radically from what we approved in In Re Disbarrment Proceedings, 321 Pa. 81, 184 Atl. 59 (1936), which the court below also cited. In that case, the Committee of Censors of the Philadelphia Bar Association investigated the professional conduct of several attorneys and filed a report with the Court of Common
Pleas of Philadelphia County charging them with unprofessional conduct. On the basis of the report, the Court issued a formal citation against the attorneys in question and a trial of the charges against them was had before the President Judges of the then five numbered Common Pleas Courts of Philadelphia. The Committee of Censors acted as prosecutor only; it did not function in any manner as judge, nor did it appoint a subcommittee of its own members to act as the trial tribunal.
When the report and recommendation of the Committee on Offenses was filed with the Court of Common Pleas of Allegheny County on May 15, 1957, at No. 1608 July Term 1957D, the accused was then entitled only to file exceptions to the report and recommendation, which he did. His exceptions were later argued by his counsel before the court en banc, consisting of a panel of three of the Court's sixteen judges. There was never a trial de novo of the complaint against the appellant before the court itself. On the contrary, the court en banc treated the Committee on Offenses, acting through its Subcommittee, as an independent quasi-judicial body invested with the fact finding power of a trial court and accepted its findings of fact as not reviewable on the merits except for want of evidence to support them.
On the record in this case, it is beyond even captious question that the complainant Committee on Offenses acted, directly and through its Subcommittee (consisting of three of its own members), as prosecutor, judge and jury at the hearing on the Committee's own complaint against the appellant. This fundamentally fatal procedural defect deprived the appellant of the "fair" hearing to which due process of law entitled him. The proceeding was thereby completely vitiated and, as a consequence, legally incapable of supporting the order of disbarrment entered by the court below solely on the basis of the Committee's report and recommendation.
But, over and above that, the testimony of the Committee's witnesses, which the Subcommittee, as the trial tribunal, accepted and presumably accredited, was insufficient, as a matter of law, to convict the appellant of professional misconduct.
The complaint, which so charged him, contained, as already listed, three specifications in support of the charge. The first specification accused him of being "a member of the Communist Party, one of the major aims and purposes of which Party is the overthrow of the Government of the United States by force and violence." The Subcommittee found that the appellant was a member of the Communist Party. But, that finding alone did not suffice for the Subcommittee's conclusion that he was guilty of unprofessional conduct. Culpability does not attach merely from membership in the Communist Party. The Supreme Court of the United States has clearly so confirmed. In Schneiderman v. United States, 320 U.S. 118, 136 (1943), in discussing membership in the Communist Party, that Court said that "under our traditions beliefs are personal and not a matter of mere association, and that men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles."
What the Supreme Court said in Konigsberg v. State Bar of California, 353 U.S. 252, 267-268 (1957), is strikingly apposite here, as the bracketed inserts of names and years relevant to the instant case, placed in juxtaposition in the quotation following, will at once make plain: "Even if it be assumed that Konigsberg [Schlesinger] was a member of the Communist Party in 1941 [1946-1950], the mere fact of membership would not support an inference that he did not have good moral character. There was no evidence that he ever engaged in or abetted any unlawful or immoral activities - or even that he knew of or supported any actions
of this nature. It may be, although there is no evidence in the record before us to that effect, that some members of that party were involved in illegal or disloyal activities, but petitioner cannot be swept into this group solely on the basis of his alleged membership in that party. In 1941 [1946-1950] the Communist Party was a recognized political party in the State of California [Pennsylvania]. Citizens of that State were free to belong to that party if they wanted to do so. The State had not attempted to attach penalties of any kind to membership in the Communist Party. Its candidates' names were on the ballots California [Pennsylvania] submitted to its voters. Those who accepted the State at its word and joined that party had a right to expect that the State would not penalize them, directly or indirectly, for doing so thereafter." (Footnotes omitted).*fn1 It was not until a year and a half after the complaint of the Committee on Offenses against the appellant was lodged with him on May 26, 1950, that the Communist Party was outlawed in Pennsylvania by the Act of December 21, 1951, P.L. 1712, 18 PS § 3811.
Membership in the Communist Party has been held not to be indicative of non-attachment to the principles of the Constitution of the United States. See Nowak v. United States, 356 U.S. 660 (1958); Maisenberg v.
violence, saying, in that connection, that "in this hearing [we] will not consider and take testimony upon the aims, objects, and purposes of the Communist Party, since the Subcommittee feels that the aims, purposes, and objects of the Communist Party have been sufficiently determined both legislatively and judicially." As authority for this conclusion, the Subcommittee relied upon Albert Appeal, 372 Pa. 13, 92 A.2d 663 (1952), which involved the dismissal of a school teacher by the Board of Public Education of Allegheny County for alleged communistic affiliations. The hearing at which testimony as to the aims and purposes of the Communist Party was excluded was before the Board, an administrative body from whose decision the accused had a right of appeal to a court and a trial de novo. Recognizing that fact, this court said (p. 22), "appellant could have obtained a hearing de novo in the Court of Common Pleas had she requested it and could there have asserted her right to present evidence designed to show that the Communist Party is not a subversive organization. Not having done so she is not now in a position to complain."
No such opportunity was ever afforded the present appellant either before the Subcommittee or in the Court of Common Pleas. Counsel for the appellant have appropriately filed with us a motion for leave to present evidence to show that the aims and purposes of the Communist Party, at the times of the acts complained of in the Committee's complaint, were not the overthrow of the Government of the United States by force and violence. Were it not for the fact that vacation of the order of the court below disbarring appellant is plainly so indicated otherwise, we would be compelled to grant the motion and give the appellant an ...