Schlesinger Appeal , 404 Pa. 584 ( 1961 )

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 disbarment, we entered an order on May 23,1960, upon his petition for a supersedeas, suspending the order of disbarment 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) “[b]y 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) “[b]y 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) “[b]y 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 tlie complaint ivas 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 Anal 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 briefs were filed. Thereafter, the Subcommittee filed its report finding that the respondent was á 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 disbarment.

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 ont 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 tb^ 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 disbarment.

The Supreme Court of the United States recognized long ago that “The attorney and counsellor, 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 disbarment 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 end 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.’ Turney 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 judical 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 disbarment.

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 resignéd 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, wé 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 disbarment 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 Disbarment 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 disbarment , entered by. the court b.elow 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).¹ 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. United States, 356 U.S. 670 (1958); Schneiderman v. United States, 320 U.S. 118 (1943). These holdings of our highest tribunal faithfully comport with Jefferson’s classic admonition in his First Inaugural Address that “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”

In Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232 (1957), the Board refused to permit Schware to take the bar examination on the ground that he had not shown good moral character. The Supreme Court of New Mexico upheld the Board’s rejection of the applicant for the reason, inter alia, that Schware was a member of the Communist Party. On appeal, the Supreme Court of the United States held, without dissent, that the evidence, including the fact of the applicant’s Communist membership, did not support a finding that he lacked “good moral character” and that the State of New Mexico had deprived him of due process in denying him the opportunity to qualify for the practice of law. Since the requirements of due process prohibit a State from denying an applicant the opportunity to qualify for the practice of law because of membership in the Communist Party, a fortiori, should the requirements of due process prohibit a State from disbarring an attorney because of his membership in the Communist Party particularly when limited to a time during which the Party Avas a legally recognized political party in the State.

As to the aims and purpose of the Communist Party, as alleged in the latter part of the first specification, the Subcommittee, as the trial tribunal, assumed by an exercise of judicial notice that one of the major aims and purposes of the Communist Party is the overthrow of the Government of the United States by force and 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 opportunity to present such evidence in order to satisfy the requirements of due process of law. As recognized in Albert Appeal, supra, “the presumption created by the doctrine of judicial notice is not a conclusive one but is subject to rebuttal.” In United States v. Aluminum Company of America, 148 F. 2d 416, 446 (C.A. 2nd Cir., 1945), Judge Learned Hand, speaking for the Court, said, “Even though we took ‘notice’ of these [aluminum production figures in the “Truman Report” of 1944], the report would not be conclusive, or more than evidence. We could not constitutionally substitute it for the findings of a court after a trial: facts which a court may judicially ‘notice’ do not for that reason become indisputable. Wigmore, |2567a.”

The second specification charged against the appellant by the Committee’s complaint accused him of “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.” The Subcommittee made no finding with reference to the organization and control of basic industries in the Pittsburgh district. That portion of the specification can, therefore, be disregarded.

The Subcommittee made a finding that the appellant was a Communist Party functionary and that he “took an active part in formulating and carrying out Communist Party policies, including, inter alia, the formation of the Civil Eights Congress . . This finding was based, as already indicated, on Cvetic’s personal definition as to what constituted a party functionary and his opinion that his definition embraced the appellant because, as Cvetic related, he was a member of the Legal Commission of the Communist Party. Even taken at face value, Cvetic’s testimony that appellant was a member of the Legal Commission of the Communist Party and that he took an active part in the formation of the Civil Eights Congress would not warrant a finding that the appellant was guilty of unprofessional conduct. While Cvetic was at pains to speak derogatorily of the appellant for providing legal representation of the Communist Party and various individual Communists, the fact remains that the Party is entitled to legal representation the same as any other organization; and a member of the bar not only has a legal right but, when called upon, a duty to defend unpopular, as Avell as popular, causes and groups. Indeed, it is the unpopular cause which most needs legal aid and representation.

In Yates v. United States, 354 U.S. 298, 330 (1957), in reversing the convictions of fourteen persons under the Smith Act, the Supreme Court said that “the sole evidence as to them [i.e., five of the fourteen] was that they had long been members, officers or functionaries of the Communist Party of California; and that standing alone . . . makes out no case against them. So far as this record shows, none of them has engaged in or been associated with any but what appear to have been wholly lawful activities . . .”

. The Nowak and Maisenberg cases, supra, hold that proof that a person is an active member and functionary of the Communist Party does not justify a finding that such person is not attached to the principles of the United States Constitution. The Yates case, supra, holds that proof of Communist Party activity as a member and functionary does not justify a finding that such person has engaged in or been associated with any unlawful activities. Certainly, therefore, such proofs will not justify a finding that a member of the bar is guilty of professional misconduct by being a member and functionary of the Communist Party when such activity was limited to a time during which the party was a legally recognized political party of the State. And, this is particularly so when the attorney’s activity and functioning within the Communist Party is shown to be connected with his legal representation of the Party and its members.

The third and final specification alleged by the Committee in support of the charge against the appellant accused him of “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.” The Subcommittee made no findings of fact relating to this charge. It concluded, however, as a matter of law, that appellant’s presumed advocacy and support of the overthrow of the United States Government by force and violence “necessarily follows from his membership in and active support of the Communist Party over a prolonged period of time as disclosed by the evidence.”

Advocacy and support of the overthrow of the government by force and violence must be proven; they cannot be presumed merely from Communist Party affiliation. See, e.g., Nowak v. United States, supra, pp. 666-668; Maisenberg v. United States, supra, p. 673; Schneiderman v. United States, supra, p. 136; Noto v. United States, 367 U.S. 290 (1961). Thus, the United States Supreme Court has held, on numerous occasions, that advocacy and support of the overthrow of the government by force and violence cannot legally be inferred from one’s being a member and functionary of the Communist Party. A fortiori, it could not “necessarily follow” therefrom, as the Subcommittee mistakenly concluded it did.

Moreover, to be culpable, such advocacy must be by no less than advocacy to forcible and violent action and not merely the advocacy of abstract doctrine. In Yates v. United States, supra, the Supreme Court pointed out (pp, 318, 324-325) that “The distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action is one that has been consistently recognized in the opinions of this Court, beginning with Fox v. Washington, 236 U.S. 273, and Schenck v. United States, 249 U.S. 47. . . . The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.” The vitality of the decision in the Yates case was recently reaffirmed in the Noto case, supra, where Mr. Justice Harlan, speaking for the Supreme Court, in unmistakable language, said (pp. 297-8), “We held in Yates, and we reiterate now, that the mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching, and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it.”

Virtually the only testimony at the hearings having any bearing upon the appellant’s state of mind related to the following statement ascribed to him by the witness Cvetic: “ ‘Comrades, while we have a large Communist Party in New York, I don’t see how we can wage a successful revolution in the United States unless we build the Communist Party in Pittsburgh where we have the basic industries.’ ” This statement obviously was no more than an expression of opinion or prediction of future events and cannot, by any stretch of imagination, be tortured to mean an exhortation to use force and violence for the overthrow of the government. Here, as in the Nowalc case, snpra, at no point does the record show that the appellant himself ever advocated forcible and violent action for the overthrow of the government or that he understood that the party advocated such action to that end. The statement attributed by Cvetic to the appellant concerning what was necessary to “wage a successful revolution in the United States” was a very mild expression of opinion when compared with the statements attributed to Nowak by the three witnesses who testified against him (see 356 U.S., p. 666), as to which the Supreme Court said, perforce, “Read in context, they can be taken as merely the expression of opinions or predictions about future events, rather than as advocacy of violent action for the overthrow of government.”

There is not a word in this record that the appellant ever advocated the overthrow of the government by the use of force and violence. Is it not remarkably strange, if he had ever been guilty of such conduct, that, at some time during the lengthy disbarment proceeding (it spanned a decade from beginning to end) there was no one to come forward to say that appellant was once heard to advocate the overthrow of the government by force and violence.

We come now to consider the further error assigned in connection with the Subcommittee’s rulings at the hearing on the appellant’s offers of proof and requests in procedural relation.

The Subcommittee’s refusal of the appellant’s offer of proof concerning the aims and purposes of the Communist Party and the deprivation of due process which the Subcommittee’s ruling entailed has already been dismissed in another connection and nothing further need be said about it here.

While the Subcommittee did permit appellant to cross-examine the witness Cvetic, to a limited extent, it refused to allow the witness to. be interrogated with respect to certain specified matters which would have directly searched the depth of Cvetic’s bias, interest and prejudice. Common and ordinary fairness should have prompted the widest latitude in appellant’s cross-examination of Cvetic, whose openly avowed hostility toward appellant was intense. On one occasion a few months before Cvetic testified in these proceedings, he had invaded the appellant’s home township where he proclaimed in a public address that he would do everything in his power to see that the appellant was disbarred.

It was also during the pendency of these proceedings that Cvetic, while counseled, if not abetted, by one Harry Alan Sherman, a member of the local bar, instituted, as private prosecutor, criminal proceedings against the appellant before a justice of the peace charging him with sedition in violation of a Pennsylvania statute. Reference has already been made in our statement of the facts to this criminal proceeding which the Court of Quarter Sessions of Allegheny County, acting by a court en banc composed of three judges, unanimously quashed as violative of the appellant’s constitutional safeguards and statutory rights.²

During the cross-examination of Cvetic, the appellant asked for and was granted a subpoena to Ilarry Alan Sherman, Cvetic’s legal representative in the criminal proceeding against appellant before the justice of the peace. The appellant called Sherman for the purpose of showing that a transcript of the proceedings before the justice of the peace had been suppressed by Sherman and that thereby appellant was severely limited in his cross-examination of Cvetic because of the unavailability of the transcript. Sherman admitted that a stenographer made a complete transcript of the proceedings before the justice of the peace, and that he had directed her not to deliver a copy of it to appellant or his attorney. After saying that he had taken the original notes, he qualified by saying that he couldn’t remember that he had but that it was possible.

Even though the testimony of the Committee’s witnesses is manifestly insufficient to support a conclusion that the appellant was guilty of professional misconduct, what discrediting effect the testimony offered by the appellant, which the Subcommittee ruled out, would have had, can only be imagined.

The appellant offered to produce the records of the Pittsburgh office of the Communist Party which were impounded in the Court of Quarter Sessions of Allegheny County, having been seized in October of 1950 in connection with another proceeding. These records covered the years during which the appellant, according to Cvetic, had belonged to the Communist Party in Pittsburgh and were, of course, relevant and material to the truth or falsity of that accusation. The offer was rejected by the Subcommittee and the evidence excluded.

The Subcommittee denied the appellant’s request that it issue a subpoena directed to the F.B.I. to produce the recordings made by the F.B.I. of the meetings at 440 Wood Street, Pittsburgh, as to the making whereof the Committee’s witness Dietze had testified. This evidence was proffered to contradict the statements of Dietze, Mazzei and Cvetic, and to show that appellant had never attended or participated in any meetings on the premises described. The Subcommittee also denied the appellant’s similar request that it issue a subpoena directed to the F.B.I. to produce the reports which the Committee’s witnesses Dietze, Mazzei and Cvetic testified that they had submitted to the F.B.I. covering the matters to which they had testified at the hearing. This proposed evidence was for the purpose of contradicting statements made by these witnesses at the hearing. The appellant was entitled to the requested evidence in both particulars on the basis of the decision of the Supreme Court in Jencks v. United States, 353 U.S. 657 (1957).

In disposing of the exceptions to the report and recommendation of the Subcommittee the court en banc held the Jencks case to be inapplicable on the ground that it was “a criminal prosecution and relates to the procedural requirements for Federal prosecution of crime by providing for requirement of fair procedure for the defendant.” The distinction is without merit. In the Jencks case the defendant was charged with perjury for falsely swearing in a non-Communist affidavit which he filed with the National Labor Relations Board. The principal witnesses against him were two informers, Ford and Matusow, hired by the F.B.I. They testified that they had sent reports to the F.B.I. concerning matters to which they were testifying at trial. The trial court refused the defendant’s motion .to direct the F.B.I. to produce these reports for inspection.. The Supreme Court reversed the defendant’s conviction, declaring (pp. 668-669) that “the petitioner was entitled to an order directing the Government to produce for inspection all reports of Matusow and Ford in its possession, written and,, when orally made, as recorded by the F.B.I., touching the events and activities as.to which.they testified at the trial. ... Justice requires no less.” The Supreme Court further held (page 666) that “the petitioner was not required to lay a preliminary foundation, of inconsistency, because a sufficient foundation ivas established by the testimony of Matusow and Ford that their reports were of the events and activities related in their testimony.”

The present appellant is just as much entitled to fair procedure as was the defendant in the Jenclcs case. A disbarment proceeding is every bit as serious as a criminal trial and often far more so; the penalty of disbarment, is certainly harsher than a fine or short imprisonment. ■ Nor is the rule of the Jencks case peculiar to federal criminal prosecutions; it is a requirement of due process of law.. The appellant has a constitutional right .to the production of the reports of the witnesses against him, touching the events and activities to which they testified, and to inspect so much of such reports as is relevant to the issue. Justice required no less in the Jenclcs. case, and it requires no less in the instant case.

The appellant .was prejudiced by the Subcommittee’s refusal to. permit him t.o interrogate Cvetic (who had indicated that he intended to submit a bill) as to how much money, he expected to be paid for testifying against him and by the Subcommittee’s , refusal of appellant’s offer to . show, that Cvetic’s sole source of income since 1950 had been derived from various anticommunist activities such as testifying against the appellant. The appellant was also prejudiced by the Subcommittee’s refusal to permit him to interrogate, in similar relation, the witness Sherman concerning a contract between him and Cvetic whereby Sherman was to receive a percentage of Cvetic’s income from all of his anti-Communist activities. The purpose of this testimony was to show the motive, bias and interest of Cvetic, as well as of the witness Sherman.

The appellant was denied the right by the Subcommittee of introducing testimony to show that Cvetic was a chronic alcoholic and that he had recently been committed to the Psychiatric Division of St. Francis’ Hospital in Pittsburgh for treatment. This evidence was offered for the purpose of impeaching the memory, mental competency and credibility of Cvetic, and it was error for the Subcommittee to reject this offer of proof.

The appellant was further prejudiced by the Subcommittee’s refusal of appellant’s offer to take and produce the deposition of Pete Martin, who wrote an article for publication in The Saturday Evening Post entitled “I was a Communist for the F.B.I.” which was based upon statements made to Martin by Cvetic. This evidence was relevant and material for the purpose of contradicting statements made by Cvetic at the hearing, and the Subcommittee’s rejection of this offer was likewise error.

In its report, the Subcommittee opened that the appellant “by invoking the Fifth Amendment . . . failed to exhibit the forthrightness and candor that the Court of Common Pleas of Allegheny County, Pennsylvania has the right to expect from an officer of that Court and such action constitutes a factor that may be taken into account by the Court in whatever disciplinary action the Court may decide.” It was error, in the circiimjstances, for the Subcommittee, as trial tribunal, to take such a factor into account in its report and recommendation. The appellant was never charged with improperly invoking the Fifth Amendment, nor was he ever notified or apprised that his refusal to answer the questions of the Committee would be considered a ground for his disbarment. Nor is there anything in the record which would indicate that his position was not taken in good faith. Indeed, the record shows ample and reasonable grounds for invoking the privilege. When the appellant, at the hearing before the Subcommittee, was interrogating Harry Alan Sherman, who had represented Cvetie as private prosecutor in Cvetic’s criminal proceeding against the appellant, with such tragic consequences to the appellant, Sherman’s declaration that if appellant denied certain statements he would be guilty of perjury was a sufficient threat to justify the appellant in pleading his privilege, if further harassment was to be avoided. In Slochower v. Board of Education, 350 U.S. 551, 557 (1956), the Supreme Court stated that “we must condemn the practice of imputing a sinister meaning to the exercise of a person’s constitutional right under the Fifth Amendment. ... As we pointed out in [Ullmann v. United States, 350 U.S. 122], a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing.” (Emphasis supplied.)

The court below attempted to extenuate the obviously unjust inferences drawn by the Subcommittee from the appellant’s reliance upon the First and Fifth Amendments to the Constitution by saying, “We believe here the Committee was referring to the uncontradicted testimony of the witnesses and the state of the record; without any such contradicting evidence and not to any odious or unlawful inference that may be drawn or resolved against the Respondent by his invocation of the First Amendment. The invocation of his constitutional right did not abrogate the testimony presented by witnesses against liim. We do not understand that the Committee is drawing any inference from the’ use of a legally invested right under the constitution . . .” In short, the court below excluded the appellant’s plea of the First and Fifth Amendments as á ground for its order of disbarment.

In summary, the Subcommittee concluded, as a matter of law, that the appellant “has been guilty of professional misconduct in that he has violated the oath ¿dministered to him at the time of his admission to the Bar.” It did not explain in what manner or in Avhat particular it deemed he had done so. It made no findings of fact relating thereto. This conclusion must rest upon the assumption that the alleged violation necessarily folloAvs from the Subcommittee’s findings that the appellant was a member and functionary of the Communist Party. HoAvever, as we have seen, the United States Supreme Court has held that such findings Avill not justify an inference that a person is not of good moral character, or is not attached to the tenets of the United States Constitution; nor Avill it justify an inference that he advocates the forcible and violent overthroAV of the government, or that he has engaged in or been associated Avith any unlaAvful activity. This conclusion óf laAV made by the Subcommittee and adopted by the court beloAV is manifestly erroneous.

The order of the court beloAV disbarring the appellant violated the requireménts of both procedural ánd substantive due process of laAV under the Fourteenth Amendment to the Constitution of the United States as well as the. Constitution of the Commonwealth.

, The order of disbarment is reversed and the record remanded Avith directions that the complaint be dismissed.

\ . Mr. Justice Musmanno did not participate in the decision in this case.

1 The later decision of the Supreme Court in Konigsberg v. State Bar of California, 366 U. S. 36 (1961), in no way derogates from what the Court said in the first Konigsberg case relative to the applicant’s alleged membership in the Communist Party. California’s second rejection of Konigsberg’s application for admission to the bar in that State was not based upon the fact that he was a member of the Communist Party. The sole ground for the Supreme Court’s affirmance of California’s refusal of Konigsberg’s application was that he had obstructed the California Committee of Bar Examiners in the performance of its duty by refusing, after having first been given due warning of the consequences, “to provide unprivileged answers to questions having a substantial relation to his qualifications.” .

2 The facts attending, and incident to, the criminal proceeding, as unanimously found by the Court of Quarter Sessions of Allegheny County, disclose a deplorable and reprehensible situation in connection with the shocking and flagrantly outrageous treatment to which the appellant was subjected. About S :45 p.m. on June 11, 1951, while at a bus station in downtown Pittsburgh, on his way home for the day, the appellant was arrested by a contable on a warrant issued by the justice of the peace on Cvetic’s sedition information against him. The warrant specifically provided, contrary to the provisions of the Pennsylvania Constitution, that there was to be no bail. The arresting officer handcuffed the appellant and placed him in an automobile in which he was driven around the town and through an outlying district for three hours until newspaper photographers had gathered at the county jail, where they took pictures of the appellant being delivered to the jail; a photograph, so showing, appeared in the public press the next day. While in jail the appellant was held without bail, was assaulted by a guard, and was lodged in a narrow dark cell in the cellar. He was refused permission to call his counsel or his wife to explain what had become of him. Finally, he was permitted to telegraph his counsel, who contacted the President Judge of the Court of Common Pleas by telephone. The latter forthwith telephoned the warden of the jail and ordered him to release the appellant on his own recognizance, which was done at 1:10 a.m., June 12th. For the complete findings, conclusions and order of the Court of Quarter Sessions of Allegheny County upon quashing the criminal proceeding instituted against Sehlesinger by Cvetic, as advised by his attorney, Sherman, see 24 Pa. D. & C. 2d 758 (1951).