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Illinois justice goes out on a limb for First Amendment, Matthew Hale

By Douglas Lee
Special to freedomforum.org

12.06.99

	James Heiple

In recent years, Heiple has been ripped for a decision in a child custody case, accused of attempting to abuse his power during a traffic stop and maligned for countless other unpopular judicial opinions. It therefore probably should come as no surprise that Heiple was Hale's only defender when the Illinois court rejected Hale's attempt to obtain a law license.

Hale's white-supremacist views have been well documented, as have Illinois officials' efforts to prevent him from practicing law. At all three levels of review, the Illinois Character and Fitness Committee denied Hale's application for a law license, finding that he lacked the requisite moral character to become a lawyer.

At no point, however, could the committee point to any unlawful or immoral act committed by Hale. Instead, it based its decision solely on Hale's radical racist views. The committee's five-member hearing panel, for example, concluded that Hale's "publicly displayed views are diametrically opposed to the letter and spirit" of the rules governing Illinois lawyers. Earlier, the committee's three-member inquiry panel found that, in regulating attorneys' conduct, certain "fundamental truths" of equality and nondiscrimination "must be preferred over the values found in the First Amendment."

	Matthew Hale

The court, however, apparently was not concerned with either the message or its chill. Without discussion or analysis, the court summarily denied Hale's request that it review the committee's recommendation.

In a dissent filed six days after the court's decision, Heiple criticized his colleagues for their head-in-the-sand approach. "The issues presented by Mr. Hale's petition," Heiple wrote, "are of such significant constitutional magnitude that they deserve a judicial review and determination by this court."

Heiple identified three important issues. First, he said that the committee's decision to deny Hale's application because of his speech "clearly impacts" the First Amendment. In doing so, Heiple squarely challenged the committee, which had asserted that the case was "not about Mr. Hale's First Amendment rights."

Second, Heiple questioned whether the committee constitutionally could deny an application for a law license without first finding that an applicant had done something improper. In Hale's case, Heiple said, the committee could only speculate that Hale was "on a collision course" with the attorney disciplinary rules. Its prediction that Hale would at some point "find himself before the Attorney Registration and Disciplinary Commission" raised, in Heiple's mind, a question as to whether the committee should be permitted to judge an applicant's moral character by what he or she might do, rather than by what he or she already has done.

Finally, Heiple wondered whether a lawyer who held Hale's views would be subject to immediate disbarment. Or, Heiple asked, "is there one standard for admission to practice and a different standard for continuing to practice?" If not, Heiple inquired, "can already-licensed lawyers be disbarred for obnoxious speech?"

Unfortunately, these questions remain unanswered in Illinois. The logic of the committee's findings in the Hale case, however, appears to extend to all lawyers. Surely different ethical standards do not exist for lawyers and would-be lawyers. Under the interpretations of these standards in the Hale case, the committee and the Attorney Registration and Disciplinary Commission (which governs licensed lawyers) suddenly have unfettered discretion to determine "the letter and spirit" of the disciplinary rules, to discern society's "fundamental truths" and to divine a person's conduct from his speech.

Matthew Hale and James Heiple aren't the only ones who should be concerned about whether this broad expansion of state power jeopardizes the First Amendment rights of those who have and who seek a law license. So far, however, they appear to be in the distinct minority, a position to which they've become quite accustomed.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.