Connolly v. Scudder (In re Richardson)
| Citation | 160 N.E. 655,247 N.Y. 401 |
| Parties | In re RICHARDSON et al. CONNOLLY v. SCUDDER, Justice. |
| Decision Date | 01 March 1928 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Separate applications by James F. Richardson and others to vacate subpoenas, and by Maurice E. Connolly for an order of prohibition. Judgments denying the applications (131 Misc. Rep. 220, 226 N. Y. S. 585; 222 App. Div. 591, 227 N. Y. S. 47), and petitioners appeal.
Reversed and rendered on both appeals.
Appeal from Supreme Court, Special Term, Kings County.
Appeal from the Supreme Court, Appellate Division, Second Department.
Joseph Steven Frank, of New York City, and William H. Robbins, of Bay Shore, for appellants Richardson and others.
Max D. Steuer, Aron Steuer and Ben Herzberg, all of New York City, for appellant Connolly.
Emory R. Buckner, John M. Harlan and Herman T. Stichman, all of New York City, for respondent.
On December 15, 1927, a citizen of the state filed with the Governor charges against Maurice E. Connolly with a view to his removal from office as president of the borough of Queens. On the following day the Governor, by an instrument in writing, which recited the filing of these charges, addressed a direction to a justice of the Supreme Court to hear the charges, and make a report to the Governor thereon. ‘Pursuant to section 34 of the Public Officers Law, I do hereby direct that Hon. Townsend Scudder, one of the justices of the Supreme Court in and for the Second judicial district of the state of New York, within which said Maurice E. Connolly resides, take evidence as to said charges with all the powers as by law provided, and I hereby further direct said justice to report to me said evidence taken in such proceedings with his findings of the material facts deemed by him to be established in connection with said charges, together with his conclusion thereon.’ Mr. Justice Scudder gave notice to the accused officer on December 30, 1927, that he would take the evidence at the county courthouse in Long Island City on February 1, 1928, and at such adjourned hearings as might be from time to time announced. He signed the notice with the addition of his official title as justice of the Supreme Court.
Even in advance of this notice, preparations had begun. Judge Scudder informs us that on December 20, 1927, he retained Mr. Emory R. Buckner, a lawyer of distinction, as his counsel in the proceedings; that thereafter he appointed seven associate counsel, two consulting engineers, a firm of accountants, a number of process servers, and suitable clerical assistants, and rented offices for the use of his staff in the city of New York. With the approval of his advisers he laid out at the beginning a comprehensive plan of action. The work was to be separated into two stages or divisions. The first was to be the stage of preliminary investigation. At this neither the accused officer nor counsel for such officer was to be permitted to be present. Witnesses subpoenaed for this branch of the inquiry were to give their testimony in camera. The credible was to be sifted from the incredible, the true from the false. Following this investigation was to come the stage of public hearing. Accused and counsel would then be present. So much of the evidence as had already received from the judge the stamp of credibility would be offered anew as if upon a trial. This would be done impartially, regardless of the outcome. ‘It is my purpose to require all evidence which I regard as credible secured in the course of the preliminary investigation and which is relevant to any of the matters involved in the charges against said Maurice E. Connolly to be presented at the public hearing whether or not said evidence supports said charges.’ Everything heard by the judge during the first stage of the inquiry was to be shut from his mind except in so far as it might be repeated at the second. He would base his report to the extent of his capacity upon the evidence forthcoming in connection with the hearing to the exclusion of anything that had come to him before.
Such was the program. No sooner was it laid out than it was put into execution. Witnesses were subpoenaed to attend before Judge Scudder in aid of the preliminary investigation and were examined in his presence after being placed under oath. Counsel for the accused official was denied the opportunity to be present, and denied a transcript of the minutes or other information as to the substance of the testimony. The depositions of witnesses procured by the judge under the compulsion of a writ were treated as equivalent to the office notes of counsel, memoranda for private use in a prospective litigation. People ex rel. Lemon v. Supreme Court of State of New York, 245 N. Y. 24, 156 N. E. 84. They were not embodied in a public record subject to public scrutiny or to inspection by opposing counsel. They will never be so embodied except in so far as it may happen that their contents will hereafter be repeated at the hearing. A preliminary investigation, thus restricted, is not a hearing by a judge. It is a search by an inquisitor.
The assumption of these powers evoked challenge and resistance. On January 9, 1928, divers witnesses, subpoenaed to attend a preliminary session, made application to the Supreme Court to vacate the subpoenas on the ground that they had been issued without warrant of law. On January 24, 1928, Connolly, the accused official, made application to the Appellate Division in the Second Judicial Department for an order of prohibition. Upon the first of these applications, the Supreme Court at Special Term upheld the validity of the subpoenas and denied the motion to vacate them. The witnesses, giving notice that only constitutional questions would be raised, have appealed directly to this court. Constitution, art. 6, § 7, subd. 3; Civil Practice Act, § 588, subd. 3. Upon the second application the Appellate Division, by its first decision, made an order dated February 6, 1928, commanding Mr. Justice Scudder to ‘desist and refrain from any further proceedings in the matter of the charges against the petitioner by way of taking and hearing the evidence of witnesses except at a hearing at which the petitioner is afforded an opportunity of being present.’ To the extent that the proceeding was public, prohibition was denied.
We have said that this was the ruling of the Appellate Division by its first decision. At that time, section 34 of the Public Officers Law (Consol. Laws, c. 47) was in the following form:
‘All sheriffs, coroners, constables and marshals to whom process shall be directed and delivered under this section shall execute the same without unnecessary delay.’
The ruling by the Appellate Division was swiftly followed by legislation enlarging the powers of the delegate of the Governor in the matter of such charges. By Laws of 1928, chapter 15, which became a law on February 8, 1928, section 34 of the Public Officers Law was amended so as to provide that in any proceeding for the removal of a public officer, the Governor may direct his delegate, whether a judge or a commissioner, to conduct an investigation into the charges, or to take evidence as to the truth thereof at a hearing for such purpose, or both. If such a direction is made, the Governor may require the Attorney General or the district attorney of the county in which the officer resides to assist the person so appointed both in the conduct of the investigation and thereafter in the hearing. Neither the officer so proceeded against nor the counsel of such officer shall have any right to be present at the investigation unless expressly so permitted. The judge or commissioner is authorized to employ counsel in any case where the Attorney General or district attorney has not been directed to assist, and to employ such other assistants as may be necessary for the performance of his duties. Whoever is named by the Governor to conduct the inquiry is to be paid the fair value of his services unless he is already employed by the state or by a county or city, in which case he is to serve gratuitously. The expenses are made a county or city charge where the proceeding is one for the removal of a county or city officer. All acts theretofore performed by one designated by the Governor in a pending proceeding are legalized and confirmed.
Upon the adoption of this statute a motion was made to the Appellate Division to vacate its order of prohibition which had been limited, as we have seen, to the inquiry in camera. The motion was...
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