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

Monday, December 6, 1999

James Heiple...
James Heiple
If anyone in Illinois legal circles is less popular than racist and would-be
lawyer Matthew Hale, it’s outspoken Illinois Supreme Court Justice James

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...
Matthew Hale
Armed with considerable First Amendment precedent, Hale took his case to the
Illinois Supreme Court, where he claimed that the committee’s actions violated
his free-speech rights. The American Civil Liberties Union of Illinois – while
careful not to support Hale unconditionally – agreed, arguing in a
friend-of-the-court brief that the committee’s probe of Hale’s beliefs “sent a
chilling message to future applicants who dare to hold or express ideas that
stray too far from the [committee's] current orthodoxy.”

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

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

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