Willner v. Committee on Character, 373 U.S. 96 (1963)

MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins, dissenting.

The majority and concurring opinions bear witness to the difficulty the Court has had divining from this messy and opaque record whether the case in truth presents a substantial federal question. Obviously much influenced by the amended remittitur of the Court of Appeals, the Court considers that the state courts have held that an applicant for membership in the New York Bar may be denied admission without having had the opportunity at any stage to confront persons whose unfavorable information may have led the Character Committee to refuse to certify the candidate’s "character and fitness."

It would take a great deal to persuade me that either of these experienced and respected New York courts has been guilty of such a questionable constitutional holding. In light of the record, I do not believe that either the Court of Appeals’ affirmance or its amended remittitur by any means points to the interpretation which this Court now places on the action of that court. In my view, the more reasonable, and correct, interpretation is that the Court of Appeals simply held that, in light of what had gone before,{1} the Appellate Division’s refusal to entertain petitioner’s last de novo application for admission -- the eighth proceeding before that court -- involved no abuse of its discretion under Rule 1 of the New York Rules of Civil Practice. More particularly, in these prior proceedings, no confrontation claim was raised until 1954 -- some 16 years after the original denial of admission -- during which period the matter had already been before the Appellate Division five times (note 1, supra).{2}

So interpreting the Court of Appeals’ action, I do not think this case presents a substantial federal question -- no more so than did the petition for certiorari which was filed here in 1955, raising this same confrontation question in almost the same context of prior proceedings, and which this Court then denied. In re Willner, 348 U.S. 955.

Now that plenary consideration has shed more light on this case than in the nature of things was afforded at the time the petition for certiorari was acted upon, I think the proper course is to dismiss the writ as improvidently granted.