Haggerty, In re

• Citation: 241 So.2d 469,257 La. 1
• Decision Date: 23 November 1970
• Docket Number: No. 50667,50667
• Parties: In re Judge Edward A. HAGGERTY, Jr.
• Court: Supreme Court of Louisiana

Page 469

241 So.2d 469

257 La. 1

In re Judge Edward A. HAGGERTY, Jr.

No. 50667.

Supreme Court of Louisiana.

Nov. 23, 1970.

Rehearing Denied Dec. 14, 1970.

Robert E. LeCorgne, Jr., New Orleans, Chief Executive Officer, for The Judiciary Commission of Louisiana.

Robert J. Zibilich, George E. Mouledoux, New Orleans, for defendant-respondent.

AYRES, Justice ad hoc.

This action is before this court on the recommendation of The Judiciary Commission of Louisiana that the respondent, Judge Edward A. Haggerty, Jr., of the Criminal District Court for the Parish of Orleans, be removed from office pursuant to charges directed against him under the provisions of Art. IX, Sec. 4, Par. B of the Louisiana Constitution as amended by Act No. 661 of 1968, which declare:

'A justice or judge may be removed from office or retired involuntarily for wilful misconduct relating to his official duty or wilful and persistent failure to perform his duty, or for habitual intemperance, or for conviction, while in office, of a felony.

'A justice or judge may be retired involuntarily for disability that seriously interferes with the performance of his duties and that is, or is likely to become, of a permanent character.'

After a preliminary investigation, the Judiciary Commission concluded that a hearing should be had upon the proposition of the removal of the respondent from office for the reasons and on the grounds of willful misconduct relating to his official duties, willful and persistent failure to perform his duties, and habitual intemperance, as well as disabilities seriously interfering with the performance of his duties. After a six-day hearing, the Commission resolved from the evidence that the respondent was guilty of charges warranting his removal from office.

The charges with which we are now primarily concerned include, among others, the following:

Willful misconduct relating to official duties, namely, gross and persistent violation of Canons I ¹, IV ², VI ³, and XVII ⁴ of the Canons of Judicial Ethics, adopted by the Supreme Court of Louisiana on October 13, 1960, as follows:

1. In participating and assisting in the organization of an assemblage for indecent purposes at the DeVille Motel in the City of New Orleans on December 17, 1969;

2. In obtaining and assisting in obtaining certain lewd and obscene motion picture films for showing at the assemblage;

3. In participating with others in the assemblage and in the showing and exhibiting of certain lewd and obscene motion pictures and still photographs.

4. In contributing financially toward the cost of the assemblage;

5. In arranging for, or assisting in the arranging of, the attendance of three prostitutes at the assemblage;

6. In promoting or assisting to promote the three prostitutes to perform certain lewd and indecent acts, as well as acts of prostitution, at the assemblage;

7. In exhibiting personal conduct and behavior unbecoming a member of the judiciary at the time of the appearance of the officers of the New Orleans Police Department at the DeVille Motel and in striking the police officers, on the aforesaid date;

8. In participating in and condoning the participation of others in acts which violate the criminal laws of the State of Louisiana relating to obscenity and prostitution, on that date;

9. In associating with persons with known criminal records and reputations;

10. In participating in illegal gambling activities;

11. In conducting himself in such a manner as to bring disgrace and discredit upon the judicial office which he holds, resulting in a loss of public respect and confidence in his ability to perform his duties.

Respondent attacked the constitutionality of the Judiciary Commission and its proceedings and questioned the propriety or legality of the Commission's acts under the Fifth Amendment of the Constitution of the United States in taking his prehearing deposition and its calling him under cross-examination. Specifically, the question is, May any finding of facts be based upon his testimony? The gravamen of defendant's first contention is that the combination of investigative, prosecutive, and adjudicative powers in the Judiciary Commission offends due process. He contends there should be a separation of such functions. However, 'It is well settled that a combination of investigative and judicial functions within an agency does not violate due process.' Pangburn v. C.A.B., 311 F.2d 349, 356 (CA 1, 1962), citing and discussing many authorities. See, also: Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); 2 Davis, Administrative Law Treatise, Sec. 13.02 (1958).

In this regard, it may be well to point out that the power of the Commission is to investigate disciplinary cases within the judiciary and then, if cause be shown, to only recommend removal or involuntary retirement to the Supreme Court. La.Constitution, Art. IX, Sec. 4 (1968). The Commission itself is not a court. It can render no judgment, civil or criminal. See, e.g., Federal Trade Commission v. Klesner, 280 U.S. 19, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838 (1929).

Under another provision of our state Constitution, the Civil Service Commission is authorized to investigate, as well as to hear and determine, charges in removal and disciplinary cases concerning classified employees. La.Constitution, Art. XIV, Sec. 15(O). The Louisiana courts have held that this combination of investigative and adjudicative functions does not violate due process. Vidrine v. State Parks and Recreation Commission, 169 So.2d 641 (La.App., 1st Cir. 1964), cert. denied 247 La. 348, 170 So.2d 867 (1965). We have not been cited nor does our own research reveal any authority supporting this contention of the respondent.

On the second of the questions above raised, the Commission, in conducting its investigation and subsequent hearing, assumed that the Fifth Amendment guarantees were available to the respondent in this disciplinary proceeding, although the authorities relied upon were the result of a closely divided court. Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967).

Notwithstanding that these cases are somewhat distinguishable from the instant case, it was seemingly taken for granted by the Commission that the respondent might not be required to testify. In this instance, however, after the preliminary investigation was instituted, respondent voluntarily filed a statement with the Commission concerning his activities on the evening and night of December 17, 1969. He did not claim any privilege under the Fifth Amendment. The voluntary furnishing of his exculpatory version of the incident waives his privilege against testifying with regard to it since this statement was furnished as part of the removal proceedings. McCormick on Evidence, Secs. 130, 131 (1954); 8 Wigmore on Evidence, Sec. 2276 (3d ed., 1961); 98 C.J.S. Witnesses § 456; 58 Am.Jur. 'Witnesses,' Sec. 95 (1948 ed.). Subsequent statements were voluntarily filed by the respondent likewise waiving his privilege under the Fifth Amendment.

The cited law sources also reveal that a defendant in a criminal proceeding waives his Fifth Amendment privileges by voluntarily taking the witness stand, and that the privilege must be claimed personally by the witness entitled to it rather than by his attorney.

In the present proceedings, the respondent (in response to a subpoena) appeared for a prehearing discovery deposition on March 30, 1970. He then testified, voluntarily and without any personal claim to his privilege against self-incrimination. Preceding the taking of his testimony, respondent's counsel stated that 'by appearing here, Judge Haggerty doesn't give up any of his rights under the United States Constitution * * * particularly the Fifth Amendment. * * *'

Likewise, at the hearing itself, respondent testified when called upon cross-examination as well as upon direct examination when called by his own counsel. In neither instance did he make any personal claim to his privilege, although his counsel did note that his testifying was subject to his constitutional rights which the respondent possessed against testifying adversely to himself.

Aside from the waiver by the respondent by volunteering his statements after the Commission notified him of the preliminary investigation of causes for his removal or involuntary retirement, he likewise waived his right to refuse to testify by doing so voluntarily without any claim to his privilege under the Fifth Amendment. The privilege against self-incrimination is personal to the witness and may not be claimed by anyone else, not even his own counsel. State v. Brown, 221 La. 394, 59 So.2d 431 (1952).

The Commission expressly noted, however, and we have likewise concluded that, even without respondent's own testimony, other testimony in the record clearly establishes each of the specifications of misconduct which we hold proved, as will be hereinafter shown. For instance, respondent's bringing the obscene films and the three prostitutes to the 'stag' party are established by the undisputed testimony of other participants in the party. Other witnesses likewise established respondent's persistent, frequent, and public illegal betting with Victor Manuel Soto and their association together, as well as respondent's friendship with and indebtedness unto Frank Occhipinti, and respondent's regular and frequent engaging in poker games at which he won significant sums from, among others, members of the bar practicing before him. Without respondent's testimony, the testimony of others amply supports the Commission's factual findings of misconduct.

It appears appropriate to first determine the character of this action. The rule appears to be established that an action of this character, for the removal of a judge, like a proceeding for a disbarment, is not...