In re Burton

• Decision Date: 28 April 1926
• Docket Number: 4288
• Court: Utah Supreme Court
• Parties: In re BURTON

246 P. 188

67 Utah 118

In re BURTON

No. 4288

Supreme Court of Utah

April 28, 1926

Original proceeding in the matter of the petition for disbarment of Hon. Thos. H. Burton.

Judgment rebuking and censuring accused, and disapproving and condemning his acts.

Harvey H. Cluff, Atty. Gen., G. Hunter Lunt, Dist. Atty., of Cedar City, and W. W. Ray, P. T. Farnsworth, and E. A. Rogers, all of Salt Lake City, appointed by the court for the prosecution.

Thomas Marioneaux, John Jensen, and G. A. Marr, all of Salt Lake City, for defense.

OPINION

PER CURIAM.

In this proceeding the disbarment of Judge Thomas H. Burton is sought. In the opinion the judge will be designated the accused. He is now, and at the time of the institution of this proceeding was, a member of the bar of this state, and was the regularly elected, qualified, and acting judge of the Fifth judicial district thereof. On February 28, 1925, William B. Higgins, also a member of the bar of this state, and a resident of the Fifth judicial district, presented to this court a petition charging the accused with certain acts of misconduct. The petition asked an investigation of such alleged acts, and, if found to be true, that the accused be disbarred, and that the certificate admitting him as a member of the bar of this state be canceled.

The petition was referred to the grievance committee of this court. This committee consists of three members. One of the members felt disqualified to act and asked to be, and was excused from considering the petition presented by Higgins. The committee was requested to advise the court whether, in its judgment, assuming the specifications set out in the petition to be true, the charges were sufficient to authorize or justify disbarment proceedings. The two remaining committeemen submitted a report stating that in their judgment, assuming the charges to be true, the allegations of the petition constituted sufficient grounds to have disbarment proceedings instituted. On the coming in of that report, the court, on June 27, 1925, requested the Attorney General of the state, in connection with the district attorney of the Fifth judicial district, to prepare and file a complaint against the accused, based upon the allegations set forth in the petition of Higgins. The complaint was filed July 23, 1925, and a citation was thereupon issued requiring the accused to appear and answer the complaint within a time designated in the citation. An answer to the complaint was filed August 10, 1925. The matter was thereupon, by order of court, referred to Hon. Elias Hansen, judge of the Fourth judicial district of the state, as referee, to hear the evidence offered in support of the petition and in support of the answer, and to report the same to the court. The report of the referee was filed with the court and arguments had. The matter was thereupon submitted for decision.

The pleadings are lengthy. The complaint contains numerous detailed specifications of alleged wrongful acts on the part of the accused and covers 30 pages of typewritten matter. The answer is likewise lengthy, denying in detail all the alleged acts of misconduct, and alleging much in explanation concerning the statements contained in the complaint. The taking of testimony extended over a period of 10 days. The volumes containing a transcript of the testimony contain more than 1,300 typewritten pages. It will thus be seen that it is impracticable to attempt, in the limits of an opinion, to recite the contents of the pleadings or of the testimony reported by the referee. The most the court can, or should, attempt to do is to announce its conclusions, and state only such parts of the testimony necessary to a proper understanding of the opinion and views of the court.

The accused was elected judge of the Fifth judicial district of the state of Utah at the general election in 1924, and is now the regularly elected, qualified, and acting judge of that district. By appointment of the governor of the state made July 6, 1923, the accused held the same office prior to the general election of 1924.

In Washington county, in the Fifth judicial district, at the April, 1924, term of the court presided over by the accused, there was pending an action for divorce, wherein Edna M. Schultz was plaintiff and Frederick S. Schultz was defendant. Willard Hanson and Higgins, attorneys at law, then represented Schultz in the action. Among the charges against the accused is the charge:

That he, during such term of court, advised Schultz that Hanson could not practice in the court presided over by the accused, to discharge his counsel, and come into court without counsel, and that the accused would see that the interest of Schultz was properly protected; consulted with other counsel to represent Schultz, and stated to Schultz that if any matter pertaining to the case came up, to see the accused or write him about it instead of consulting with his counsel; that the accused conferred with another counsel and requested him to prepare an answer in the case for Schultz and to get him to sign it and bring it in chambers and lay it on the desk of the accused, and if Higgins said anything about it or asked where it came from, the accused "would tell him that he found it;" that the accused advised Schultz that he ought to give his wife a divorce and not make any contest, when in truth and in fact she had no grounds for divorce and as was later evidenced when the case was tried and disposed of on the merits by another judge, who found and adjudged that Mrs. Schultz had no cause of action and dismissed her complaint; that while the demurrer to the complaint and a motion to modify the restraining order tying up all of Schultz's property were pending and undisposed of, a motion supported by affidavits was filed by Hanson as counsel for Schultz for a change of judge; that the accused wrongfully and arbitrarily denied the motion, and thereafter, in the absence of Hanson, who was then the only counsel of record for Schultz, permitted counsel for plaintiff to examine Schultz concerning the motion to modify the restraining order; and that, upon an intention being indicated to procure a transcript of the proceedings to have reviewed the ruling denying the motion for a change of judge, the accused, during such term of court, with a "wicked and unlawful purpose and design to hinder and oppress said Hanson and Higgins, attorneys for the said Frederick S. Schultz, unlawfully and maliciously prepared a letter addressed to himself as judge, purporting to have been written by said Frederick S. Schultz, which said letter in words and figures is as follows:

"'In the Fifth Judicial District Court of the State of Utah in and for Washington County.

"'Edna M. Schultz, Plaintiff, v. Frederick S. Schultz, Defendant.

"'To the Honorable Thomas H. Burton: I desire, if it please your honor, to make a free and voluntary statement in my own behalf in the above-entitled action:

"'On the 6th day of October, 1923, my wife brought a suit against me for divorce in this court. On the 8th day of October, 1923, I was served with an order to show cause, and a restraining order, and all my property was tied up, and I was prohibited from going to my own home, and I had no money to carry on my business.

"'On the 13th day of October, 1923, I employed Hon. D. H. Morris and he entered into a stipulation with my wife's attorney to have the order modified, which was done, and I was given $ 3,000 to carry on the expense of running my business.

"'On October the 7th, 1923, I was served with a summons. Later I hired Hon. W. F. Knox, and on December 7, 1923, he entered into a stipulation whereby the order was again modified, and I was directed to pay $ 500 to my wife's attorneys, $ 500 suit money, $ 300 for medical expense for my baby, and $ 150 per month alimony. It also provided that I should also see my child at St. George, Utah, at all reasonable hours. Soon after my wife took the child to California, and since her return has prevented me from seeing the baby until. I saw it when your honor made an order that the baby be brought to the courtroom on the 17th of April. Later on, the order was changed again to permit me to occupy the house while my wife was away; later on the order of December was restored. The case seemed to me it was kept out of court for some reason and was being delayed and I was eternally digging up money for attorneys on both sides, suit money and other expenses, and for some reason I could get no action.

"'I discharged W. F. Knox and paid him off and went to Fillmore to see Mr. William B. Higgins. I employed him and entered into a written contract with him. He sent me to Salt Lake City to see Willard Hanson, who, he said, would be associated with him, but that he, William B. Higgins, was not to be known in the case.

"'I saw Mr. Hanson and he made out an application for a modification of the order and I was informed that the same was presented to your honor at Fillmore in March, and that you had denied it, and I did not know any better until I heard your statement and order made in court on the 17th of April, 1924.

"'I was told that you were biased and prejudiced against me, and that you were standing in with my wife and her attorneys, and that you had made to them promises, and I was induced through these representations to file in this court an affidavit alleging that you were biased and prejudiced against me. I must say that I was very much surprised when I saw you on the bench and saw how fair and impartial that you were, and I discovered that I had been grossly deceived. It then appeared to me that the change of judge asked for was for no other purpose than to delay the case "in order to bleed me further in the...