Posthumous Justice for Lawyers

This undated family photo shows Hong Yen Chang. Chang was an Ivy League graduate thought to be the first Chinese-born, United States-trained lawyer when the California Supreme Court denied his application to practice law in a 1890 decision. Now, students at a Northern California law school hope to persuade the current court to reverse the 124-year-old decision that is still studied in law schools. (AP Photo/Chang Family)

Under the heading of “better late than never,” or “posthumous justice,” is this news story from the UC Davis School of Law and the Asian Pacific American Law Students Association (APALSA). [h/t John Steele at LEF] As we learn below, while there is no California precedent for what this group of students is seeking, in Washington and Pennsylvania a symbolic victory over the effects of discriminatory legislation was achieved when applicants likewise excluded from their respective state bars were posthumously admitted. After the story of Hong Yen Chang I’ll share an analogous case of posthumous symbolic justice from South Africa. However, the South African case does not involve a denial of the opportunity to practice law (Chang himself was admitted to the New York State bar before being denied the right to gain a license to practice after moving to California), but rather a scenario in which activist lawyers (often communists) disbarred or struck from the roll of attorneys and advocates while fighting apartheid, were later (in the post-apartheid era) reinstated to the bar.

More than a century after a New York lawyer was denied the opportunity to practice law in California because of state laws that barred Chinese immigrants from most careers and opportunities, UC Davis law students are seeking his posthumous admission to the California State Bar.

The students in the UC Davis School of Law Asian Pacific American Law Students Association (APALSA) are asking the State Bar of California, and eventually the California Supreme Court, to admit Hong Yen Chang, who was denied a license to practice law in California in 1890.

Chang attended Yale as part of the Chinese Educational Mission, a pioneering program initiated by the Chinese government. He then left the United States and later returned on his own to study law. He earned a degree from Columbia Law School in 1886 and sat for the New York bar exam by special act of the legislature. When he was admitted to the New York state bar, The New York Times reported that Chang was the first Chinese immigrant admitted to any bar in the United States. In 1890, he came to California with the intention of serving San Francisco’s Chinese community as an attorney.

At that time, the federal Chinese Exclusion Act banned Chinese immigrants from naturalizing as citizens, and a California law prohibited noncitizens from practicing law in the state. Taken together, these laws made it impossible for people of Chinese descent to earn law licenses in the state. Chang petitioned the California Supreme Court, but was denied admission.

He went on to a distinguished career in banking and diplomacy, but his story was not forgotten. Now, the students are seeking a symbolic victory on behalf of Chang and others who suffered as a result of laws that discriminated against the Chinese.

‘Admitting Mr. Chang would be a powerful symbol of our state’s repudiation of laws that singled out Chinese immigrants for discrimination,’ said Gabriel ‘Jack’ Chin, a professor at UC Davis School of Law and APALSA’s faculty adviser on the project. ‘At the time Chang was excluded from the practice of law in California, discrimination against Chinese persons was widespread. Congress prohibited all Chinese immigration. Even the California Constitution dedicated an entire article to restricting the rights of Chinese residents.’

The UC Davis School of Law California Supreme Court Clinic is representing APALSA in the case. It has formally requested the State Bar to support the project and will file a petition with the California Supreme Court seeking Chang’s admission this semester. The clinic, the first and only law school clinic of its kind, represents parties and amici in a wide range of both civil and criminal matters pending before the California Supreme Court.

Other states have posthumously admitted applicants who were excluded from their respective bars based on similar discriminatory laws. In 2001, the Washington Supreme Court admitted Takuji Yamashita, a Japanese immigrant who had been refused admission to the profession in 1902. And in 2010, the Pennsylvania Supreme Court posthumously admitted George B. Vashon, an African American who had been denied admission in 1847 because of race.

Chang’s descendants remain in the San Francisco Bay Area, including grandniece Rachelle Chong, the first Asian American to serve as a commissioner of the Federal Communications Commission and of the California Public Utilities Commission. ‘In my generation, our family is extremely fortunate to have three lawyers admitted to the California State Bar: my cousins Suzanne Ah Tye, Kirk Ah Tye, and myself,’ said Chong. ‘It would be fitting and right to have my granduncle’s exclusion reversed by the California Supreme Court to ensure that justice, albeit late, is done. Our family is honored that the UC Davis APALSA students have taken up the issue of righting a terrible wrong.’

‘From its inception more than 40 years ago, UC Davis School of Law has been dedicated to the ideals of social justice and equality espoused by Dr. Martin Luther King Jr., for whom our law school building is named,’ said Dean Kevin R. Johnson. ‘This effort by our students and faculty to admit Hong Yen Chang to the California State Bar stands strongly within that tradition and is deserving of support.’

During the struggle against apartheid in South Africa, lawyers were found in prominent activist and leadership roles, both in and outside the courtroom. Their political activism was often “illegal,” although the ostensible criminal behavior occurred on behalf of democratic rights and social justice. In fact, the role of law and lawyers under apartheid, during the transitional period, and with the emergence of the constitution of the new democratic State, is worthy of further and close examination, building upon such pioneering studies as Richard L. Abel’s Politics by Other Means: Law in the Struggle Against Apartheid (Routledge, 1995), Heinz Klug’s Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction (Cambridge University Press, 2000), and Stephen Clingman’s, Bram Fischer: Afrikaner Revolutionary (University of Massachusetts Press, 1998).

While readers may know that Nelson Mandela and Oliver Tambo were prominent lawyers, there were more than a few others, including Bram Fischer, Joe Slovo, Lewis Baker, Albert “Albie” Louis Sachs (in 1994, appointed to the Constitutional Court of South Africa), and Shun Chetty, the first three also members of the South African Communist Party (SACP). In fact, most of these lawyers (including, arguably but I suspect correctly, Mandela) were also communists, and thus their appreciation of the democratic rule of law and later commitment to Liberal constitutionalism serves to counter common assumptions and shibboleths about communists and their putative historic and universal disdain for, or failure to appreciate the true nature of, both democracy and Liberal constitutionalism. Mention should also be made of a handful of South African government jurists during the rule of apartheid, most notably South Africa’s former judge, Richard J. Goldstone.*

Following the 1994 elections in South Africa, a “Restoration of Enrolment of Certain Legal Practitioners Bill” had been in the works, aimed at figures like Bram Fischer, Shun Chetty and Lewis Baker who were disbarred or struck off the roll of attorneys for various reasons that arose out of their activist political opposition to apartheid. On October 28, 2002, the Reinstatement of Enrolment of Certain Deceased Legal Practitioners Act was passed into law by the Parliament and later signed by the President. The Bill reads as follows:

*   *   * To provide for the reinstatement of the enrolment of certain deceased legal practitioners who were struck off the roll of advocates or attorneys as a result of their opposition to the previous political dispensation of apartheid or their assistance to persons who were opposed to the said apartheid dispensation; and to provide for matters connected therewith.

PREAMBLE

WHEREAS it is appropriate to honour the memory of those legal practitioners who made a contribution to the opposition to the previous political dispensation of apartheid, or who assisted persons who were so opposed, and who were struck off the roll on account of such opposition or assistance;

AND IN ORDER TO redress the injustices of the past by restoring the professional status of those legal practitioners who were so removed during the apartheid dispensation,

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:

Reinstatement on roll of advocates or attorneys

1. (1) Despite the provisions of the Admission of Advocates Act, 1964 (Act No. 74 of 1964), and the Attorneys Act, 1979 (Act No. 53 of 1979), the name of any deceased person who was removed from the roll of advocates or attorneys prior to 27 April 1994, may, upon application brought by a member of such deceased person’s family or, after consultation with the deceased person’s family, by (a) the General Council of the Bar of South Africa; (b) the Bar Council concerned;  (c) the Society of Advocates concerned; (d) the Law Society of South Africa; (e) the law society concerned; or (f) any other interested person, to any High court, be reinstated to the roll of advocates or attorneys, as the case may be, if the court is satisfied that the conduct that led to that person’s name being removed from the roll in question was directly related to that person’s opposition to the previous political dispensation of apartheid and to bringing about political or constitutional change in the Republic, or to assisting persons who were likewise opposed to the said apartheid dispensation.

(2) If a High Court orders that the name of a person be reinstated as contemplated in subsection (1)-(a) to the roll of advocates, the registrar of the Court must forthwith forward a certified copy of that order to the Director-General: Justice and Constitutional Development, who must enter a reference to that order opposite the name of the person in question; or (b) to the roll of attorneys, the registrar of the Court must enter a reference to that order opposite the name of the person in question in the registers kept by him or her for that purpose and forward certified copies of that order to the registrars of the other High Courts and the registrars of deeds appointed in terms of the Deeds Registries Act, 1937 (Act No. 47 of 1937), who, in turn, must enter a reference to that order opposite the name of the person in question in the registers kept by them for that purpose.

Names of reinstated persons to be submitted to Parliament

2. The Cabinet member responsible for the administration of justice must cause the name of any person who was reinstated to the roll of advocates or attorneys in terms of section 1 to be submitted to Parliament.

3. This Act is called the Reinstatement of Enrolment of Certain Deceased Legal Practitioners Act, 2002.” *   *   *                                                                                                                                                                                                                                                                                         

Bram Fischer, a remarkable (communist) anti-apartheid activist and lawyer, was in 2003 the first South African ever to be posthumously reinstated to the bar. Both Lewis Baker and Shun Chetty were reinstated to the roll of attorneys by the Pretoria High Court, the former in September 2005, and the latter, September 2006. In a future post I will discuss the life and work of these and other activist (or ‘cause’) lawyers in the struggle against apartheid in South African history.

* As it says in the Wikipedia entry on Goldstone, “He was one of several liberal judges who issued key rulings that undermined apartheid from within the system by tempering the worst effects of the country's racial laws. Among other important rulings, Goldstone made the Group Areas Act – under which non-whites were banned from living in ‘whites only’ areas – virtually unworkable by restricting evictions. As a result, prosecutions under the act virtually ceased.

During the transition from apartheid to multiracial democracy in the early 1990s, he headed the influential Goldstone Commission investigations into political violence in South Africa between 1991 and 1994. Goldstone’s work enabled multi-party negotiations to remain on course despite repeated outbreaks of violence, and his willingness to criticise all sides led to him being dubbed ‘perhaps the most trusted man, certainly the most trusted member of the white establishment’ in South Africa. He was credited with playing an indispensable role in the transition and became a well-known public figure in South Africa, attracting widespread international support and interest.”

Although the transition in South Africa might be fairly characterized as “peaceful” in broad historical and comparative terms, there was in fact a considerable amount of violence, the bulk of which was not committed by the ANC’s armed wing, Umkhonto weSwize (‘Spear of the Nation,’ or ‘MK’ as it was commonly known). From February 1990 to April 1994, roughly 14,000-15,000 people died as a result of such violence. As Janet Cherry points out, “more people died in the four-year transition, after MK had suspended its armed struggle, than in the preceding three decades.”