Friedman, In re

• Citation: 241 N.Y.S.2d 793,19 A.D.2d 120
• Parties: In the Matter of the Proceedings pursuant to Section 9-a of Article VI of the Constitution in relation to Louis L. FRIEDMAN, Justice of the Supreme Court, Second Judicial District, Appellant.
• Decision Date: 09 July 1963
• Court: New York Supreme Court Appellate Division

Page 793

241 N.Y.S.2d 793

19 A.D.2d 120

In the Matter of the Proceedings pursuant to Section 9-a of

Article VI of the Constitution in relation to

Louis L. FRIEDMAN, Justice of the

Supreme Court, Second Judicial

District, Appellant.

Supreme Court, Appellate Division, Third Department.

July 9, 1963.

Davis, Polk, Wardwell, Sunderland & Kiendl, New York City (Theodore Kiendl, New York City, Raphael H. Weissman, Brooklyn, of counsel), for appellant-petitioner.

John R. Davison, Albany, and William R. Brennan, Buffalo, counsel designated to conduct removal proceedings.

Before BERGAN, P. J., and HERLIHY, REYNOLDS and TAYLOR, JJ.

REYNOLDS, Justice.

Respondent moves to dismiss an appeal from, and an Article 78 proceeding to review, a determination of the Court on the Judiciary dated February 22, 1963, removing Justice Louis L. Friedman from his office as Justice of the Supreme Court. Respondent also moves to dismiss an appeal taken from the order dated April 3, 1963 by the Court on the Judiciary denying appellant's motion to vacate its order of February 22, 1963 removing appellant from his office. The appeal, petition and cross-motion of appellant also ask for a stay of the determination of the Court on the Judiciary until the issues in the appeal and/or Article 78 proceeding are decided by this court. The issues to be determined are: (1) Whether a judge removed from office by the Court on the Judiciary may review that determination by an appeal to this court. (2) Whether a removed judge may review his removal by an Article 78 proceeding in this court.

The Court on the Judiciary was established by Article VI, § 22 of the New York State Constitution and no right to appeal is provided for therein. Appellant contends that the instant determination is appealable for two reasons, First: That it is appealable as an order in a special proceeding under Civil Practice Act, § 631. Second: That this appeal must lie, despite the absence of statutory authority because appellant is attacking the jurisdiction of the Court on the Judiciary and the manner in which it conducted the proceedings leading to his removal. As to the first contention, Civil Practice Act, § 631(2) provides:

'An appeal may be taken to the appellate division of the supreme court,

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'From an order, affecting a substantial right, made by a court of record possessing original jurisdiction, * * * in a special proceeding instituted in that court, * * * pursuant to a special statutory provision. * * *.'

We agree that the determination affects a substantial right, that the Court on the Judiciary is a court of record possessing original jurisdiction, but Matter of Droege, 197 N.Y. 44, 90 N.E. 340, precludes any review under this section by holding that a proceeding to remove a judge is not a 'special proceeding'. In Droege, which involved the removal of a New York City Magistrate the court indicated that because the Constitution merely provided that inferior court judges could be removed for cause and granted no power to any particular body to conduct removal proceedings the legislature could as well have granted that power to the governor or any state officer rather than to the Appellate Division, as it did. This being so the court decided that the proceeding should not be termed a 'special proceeding', for it certainly would not have been if the legislature had granted removal powers to any officer or body other than a court. The situation in the instant case is strikingly similar for, although the Constitution empowers the Court on the Judiciary to remove judges, it also grants power to the legislature to stay those proceedings and deal with the matter of removal itself (Article VI, § 22[e]). If the legislature had done that in this case we could not call this a 'special proceeding' and under the authority of Droege we may not do so on the facts herein.

Although Droege precludes any review here of the merits of the case it points up the distinction between such a review and the judicial power to determine whether the power of the Court on the Judiciary was properly exercised in the form required by the Constitution. In fact, Droege indicates that the latter type of review may be available under certain conditions which leads us to appellant's second contention. Despite the fact that there may be no right to consider the merits under § 631(2) appellant claims that there is a limited right to appeal to consider whether the Court on the Judiciary had authority to render the order herein and whether the court pursued the procedure prescribed in the Constitution, and legally proceeded according to its own established rules. He further contends, that such a right of appeal exists independent of statute and even if the statute proscribes such an appeal. It will be seen that the answer to the problem is whether this court can handle the jurisdictional issues either by appeal or by an Article 78 proceeding depends on whether the Court on the Judiciary is an inferior tribunal or a court of co-ordinate or superior jurisdiction. As we have pointed out, Droege which precludes an appeal under § 631(2), is authority, under certain circumstances, for the limited right of appeal requested by appellant in the case at bar. He can reasonably argue that Droege establishes that he has a right to have the question of jurisdiction decided by some court, and the remaining question is whether it could be handled by this court. The pertinent language in Droege is found 197 N.Y. at pages 52 and 53, 90 N.E. at page 343 where the court, quoting from an earlier decision, notes that when the Constitution (or a statute) vests a discretionary or judicial power in any inferior tribunal or officer, a highter court has no further control over the exercise of such power 'than to see that such inferior tribunal or officer, on the occasion of its exercise, had jurisdiction over the subject-matter of its exercise (that is, that the occasion or circumstances, contemplated by the Constitution or the act, for its exercise had occurred), and that the power has been exercised in the form prescribed by the Constitution or the act.' vesting such power. This reasoning has been applied in many cases, always in the situation, however, where a 'higher' court is examining a decision of an 'inferior' court or officer, and especially where a statute has precluded judicial review of the decision of the court of official in question or is to the effect that the decision of the inferior tribunal shall be 'final and conclusive'. Thus in Matter or Guardian Life Ins. Co. v. Bohilinger (308 N.Y. 174, 124 N.E.2d 110), where the court was reviewing a determination of the Superintendent of Insurance, Judge Fuld opined 308 N.Y. at page 183, 124 N.E.2d at page 114:

'Even where judicial review is proscribed by statute, the courts have the power and the duty to make certain that the administrative official has not acted in excess of the grant of authority given him by statute or in disregard of the standard prescribed by the legislature.'

(See also, Matter of Merendino v. Graves, 256 App.Div. 50, 9 N.Y.S.2d 473; Matter of Birmingham v. Graves, 227 App.Div. 262, 237 N.Y.S. 465, app. dmsd. 255 N.Y. 623, 175 N.E. 341, cert. den. 287 U.S. 669, 53 S.Ct. 313, 77 L.Ed. 577; Matter of Skinkle, 221 App.Div. 682, 225 N.Y.S. 80.) The theory involved is that a court (or administrative officer or body) must have jurisdiction in order to render a valied judgment or determination of any kind binding upon the parties concerned. A judgment or determination granted without jurisdiction (meaning authority to render a judgment or...