In re McGarry

• Decision Date: 25 September 1942
• Docket Number: No. 26113.,26113.
• Citation: 380 Ill. 359,44 N.E.2d 7
• Parties: In re McGARRY.
• Court: Illinois Supreme Court

380 Ill. 359

44 N.E.2d 7

In re McGARRY.

No. 26113.

Supreme Court of Illinois.

Sept. 25, 1942.

Proceedings instituted by the Board of Managers of the Chicago Bar Association, as Commissioners of the Supreme Court, for the disbarment of Eugene L. McGarry.

Rule discharged.

Charles Levitan, amicus curiae.

Wm. Scott Stewart, of Chicago, for respondent.

GUNN, Justice.

The Board of Managers of the Chicago Bar Association as commissioners of this court filed a report recommending Eugene L. McGarry be disbarred and his name stricken from the roll of attorneys of this court. The respondent filed exceptions to said report and the cause is now before us. This proceeding and report involved the respondent's conduct in connection with the approval of bail bonds while acting as judge of the municipal court of Chicago. All of the matters complained of relate to his approval of bonds on which either Harold Gendon or Francesco Bracciaventi was surety. Over a period of a number of years respondent had approved some sixty odd bonds purported to be signed by Gendon, and thirty-five on which Bracciaventi was surety. The evidence shows these men became sureties at the request of Samuel Brin, who for many years had made a practice of procuring bondsmen for those charged with criminal offenses.

Brin would charge a fee for furnishing a bond and would give part of this money to the surety. Brin had obtained bonds for clients of respondent McGarry before he was elected judge of the municipal court. Brin was a precinct captain of a political party and was interested in a tavern, but his financial condition is not shown. Gendon and Bracciaventi were both shown to be financially irresponsible. Gendon had title to a tract of real estate which Brin had caused to be conveyed to him in order that he might become a surety on bail bonds. This property was a vacant lot which, when the mortgage upon it is taken into consideration, was possibly worth $200. Respondent testified Gendon told him he had been offered $5000 for it by an oil company for use as a filling station and that he thought it was worth more. Bracciaventi had no property and during most of the time involved was on relief. He owned some real estate but the improvementswere removed during the latter part of the period involved and it was scheduled on the bonds as vacant property. It was of substantially no value. The proof shows respondent made no inquiry about the financial condition of either Gendon or Bracciaventi, who were always accompanied by Brin when they presented bail bonds upon which either of them was surety.

Respondent testified Gendon was always present or in the vicinity of the court room when he approved the bonds. This statement is claimed to be untrue, because it appears Gendon's signature was forged upon eight of the bonds, raising the implication the acknowledgments upon such bonds must have been made when Gendon was not present. Circumstances are also in evidence which indicate the respondent acknowledged one of the bonds in blank before the name of the defendant or the crime with which he was charged were written in, since it appears he was in Hot Springs, Arkansas, on the date of the defendant's arrest. The evidence surrounding this transaction is somewhat confused, as the bond is dated in March, 1938, and the arrest occurred in March, 1939, but assuming the date was erroneous the respondent was in Hot Springs in March, 1939, when the bond was purported to have been approved.

Rule No. 9 of the municipal court of Chicago provides in part ‘it shall be the duty of a judge before approving any recognizance or bond upon which real estate is scheduled (excepting upon Sundays, holidays and Saturday afternoons between 12 o'clock M. and 8 o'clock P. M.) to cause inquiry to be made of a deputy clerk, assigned to such duty, respecting the condition of the title and the value of the real estate scheduled.’ This rule was not complied with in regard to any of the bonds signed by Gendon or Bracciaventi. Many of the other municipal judges testified they considered the rule advisory only, and that they had at times failed to follow it. Respondent disregarded the rule more frequently than any of the other judges. A compilation of the approval of bonds by municipal judges covering a full period from 1934 to 1939, inclusive, discloses seventeen of the judges had approved unscheduled bonds on numerous occasions. The total number by respondent for such period was 398; other judges 144, 190, 102 and 151 respectively; the others much less frequently. Fifty municipal judges are shown to have occasionally disregarded the rule. There is nothing in the record to show whether respondent had before him a correspondingly greater number of cases. However, the evidence does show the rule was habitually disregarded by most if not all of the judges. The record also discloses of the bonds approved by respondent without compliance with the rule one was forfeited, and that of the other bonds approved in accordance with the rule seven were forfeited.

The substance of the complaint is that a judge should act in good faith, and that in the proper exercise of his judicial duties the financial responsibility of Gendon and Bracciaventi could and should have been known, and that respondent's conduct tended to bring the bar and the judiciary into ill repute and to obstruct justice, and that there was a conspiracy between the respondent, Brin, Gendon and Bracciaventi to do illegal acts, and to permit persons to be released from custody without giving proper bail, and that such actions constituted a conspiracy to permit Brin, Gendon and Bracciaventi to derive compensation by executing and filing worthless bail bonds. There is a supplemental charge the respondent disregarded the rules of the municipal court and the statute of the State of Illinois relating to professional bondsmen in that Gendon had at no time been licensed as a professional bondsman.

A motion to quash was made by respondent based upon the claim all of the matters contained in the complaint referred to activities in his judicial office, and that the only tribunal having jurisdiction to act upon the same was the legislature by way of impeachment. Respondent filed an answer denying the charges of the complaint, and further set out all of the acts described in the complaint were performed by him as a judge and acting in the exercise of his judicial discretion, and denying there was any conspiracy or anything done by respondent to bring the judiciary into ill repute.

The relator takes the general position that any acts committed by respondent whether acting as a judge or otherwise, which would be sufficient ground for the striking of the name of a practicing attorney from the rolls is ground likewise for striking from such roll the name of the respondent, even though he be acting as a judge. The respondent takes the positionthat all of the acts charged were such as came within his discretion as a judicial officer to determine, and that as a matter of policy the actions of a judge in his judicial capacity cannot be (1) the basis of a disbarment proceeding; (2) the proceeding amounts to one removing a judge from office by taking from him his license to practice law necessary to hold office; and (3) there is no proof of showing moral turpitude or a wilful and intentional violation of any law.

The findings of the commissioners are general, but their substance is that the respondent by his reliance upon Brin shows he regarded the approval of bonds and schedules as a mere formality upon the part of the court, and that he lent himself to the illicit bond business of Brin and others, and that his actions indicate slackness and abuse of discretion in his judicial duties, and such a malfeasance in the administration of those duties as would amount to moral turpitude; and that respondent's arrangements and transactions between Brin, Gendon and Bracciaventi constituted a conspiracy to do illegal acts to obstruct the course of justice and to permit persons to be released from custody without compliance with the law relating to the giving of bail, and that said actions constitute a conspiracy to permit such persons to derive profit by executing worthless bonds.

Both the complaint and findings are in fact based upon actions in exercise of the respondent's judicial duties. The first matter, therefore, to which it is necessary to direct our attention is the extent, if any, to which a lawyer who is performing judicial duties as a judge of a court of record is amenable to discipline under the rules of this court. All of the matters complained of arise out of the actions of respondent as a judge of the municipal court in fixing and approving bail bonds of persons accused of crime brought before him. The constitution provides all persons shall be bailable by sufficient sureties except for capital offenses, where the proof is evident or the presumption great, etc. Const. of 1870, art. II, sec. 7, Smith-Hurd Stats. This section contemplates the admission to reasonable bail of all persons charged with a criminal offense, except for a capital offense, where the presumption is great or the proof is evident. People ex rel. Smith v. Blaylock, 357 Ill. 23, 191 N.E. 206, 93 A.L.R. 300. Bail is not allowed or refused on account of the presumed guilt or innccence of the person accused, though the existence of a doubt as to his guilt and the probability of his appearance are proper matters for consideration in determining the amount of bail, and likewise the character and criminal record of the person accused is a proper matter to be considered in fixing it. People ex rel. Sammons v. Snow, 340 Ill. 464, 173 N.E. 8, 72 A.L.R. 798.

Official action is judicial where it is the result of judgment or discretion. When the officer has the authority to hear and determine the rights of persons or property, or the propriety of doing an act he is vested with judicial...