Osterman, Matter of
| Decision Date | 08 October 1963 |
| Citation | 409 N.Y.S.2d 960 |
| Parties | In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Melvin H. OSTERMAN, Judge of the Court of Claims of the State of New York. |
| Court | New York Court on the Judiciary |
Before DESMOND, P. J., and DYE, BOTEIN, UGHETTA, GIBSON and GOLDMAN, JJ.
On April 15, 1963 MELVIN H. OSTERMAN, a Judge of the Court of Claims of the State of New York, appeared before a New York County Grand Jury which, as he was at that time and place informed and as he had previously been informed, was investigating to determine whether there was or had been a conspiracy to bribe a public officer attached to the New York State Liquor Authority. In the presence of the Grand Jury Judge OSTERMAN was asked by an Assistant District Attorney of New York County to sign a general waiver of immunity. He declined to do so and stated that he was willing to sign a form of waiver which he produced at the Grand Jury hearing and which, being of the kind referred to in section 6 of article I of the New York State Constitution, would waive immunity with respect to such questions only as should be related to the performance of his judicial duties. The prosecutor informed the Judge that the former desired to question the latter not about the performance of any judicial duties but as to a conspiracy to bribe a State Liquor Authority official. Judge OSTERMAN still refused to sign the general waiver and was thereupon excused by the Assistant District Attorney from further attendance before the Grand Jury.
When the occurrence described in the paragraph above came to the attention of the Governor of the State of New York, the latter by telegram to Judge OSTERMAN demanded that he resign his judicial office, notifying him that if he did not do so the Governor would request the convening of a Court on the Judiciary pursuant to section 22 of article VI of the State Constitution. Judge OSTERMAN by letter from his counsel refused to resign, listing several reasons including a statement that the Judge was apparently an "object or target" of the investigation and that it was, therefore, a violation of his constitutional rights to call him before the Grand Jury except to question him as to his official conduct in office, citing section 6 of article I of the State Constitution. On receipt of counsel's letter the Governor, within his powers as described in section 22 of article VI of the State Constitution, requested that a Court on the Judiciary be convened. It was so convened and the court appointed counsel to conduct the proceedings. Such counsel drew up and presented to the Court on the Judiciary, as written charges and causes for his removal, allegations that Judge OSTERMAN had refused to sign a general waiver as above described, also that he had obstructed the Grand Jury investigation not only by refusing to sign the general waiver of immunity but in other described ways, and that he had illegally practiced law after becoming a Judge and had lied to the Assistant District Attorney when he denied that he had continued to deal with State Liquor Authority matters after becoming a Judge. On receipt of these charges from its designated attorney, the Court on the Judiciary pursuant to its rules made a preliminary determination that the charges alleged facts sufficient if proven to constitute cause for removal of Judge OSTERMAN.
By reason of the subsequent proceedings about to be described, there is before the Court on the Judiciary at this time and passed on in this order and judgment one charge only, that is, the charge summarized in paragraph numbered 8(c) and hereinafter called charge number 8(c) which alleges a refusal, by refusing to sign a general immunity waiver, to co-operate with and assist the Grand Jury's investigation into an alleged conspiracy to bribe a State Liquor Authority official. The other charges served on Judge OSTERMAN, that is, those mentioned in paragraphs numbered 8(a) 8(b) and 8(d), are reserved by the court for future disposition.
The answer filed to the charges admits that in March, 1963, three weeks before the Grand Jury appearance of Judge OSTERMAN, he had been asked by the assistant prosecutor in a conversation at the latter's office whether he (the Judge) had continued after he became a Judge to deal with State Liquor Authority matters and as to whether in July, 1962 while he was a Judge he had discussed with the State Liquor Authority Chairman a difficulty Bermuda Sales Corporation was having with the State Liquor Authority. The answer admitted that he (the Judge) had denied in that conversation that he had so dealt with or discussed any such matters. The answer admitted also that on his appearance before the Grand Jury Judge OSTERMAN had been informed by the Assistant District Attorney that he had been requested to appear before the Grand Jury "in connection with an investigation to determine whether there was in existence a conspiracy to commit the crimes of bribery of a public officer attached to the State Liquor Authority." The answer further admitted that the Judge had been asked to and had refused to sign a general waiver of immunity and that, when he offered to waive immunity as to questions relating to his judicial service only, he had been informed that the prosecutor's desire was to question him not about the performance of his judicial duties but as to a conspiracy to bribe a State Liquor Authority official. In addition to the pleadings we have a written stipulation signed by counsel on both sides and putting before the court an accurate transcript of the Grand Jury proceedings heretofore described.
On the pleadings and the stipulation above referred to, counsel designated to conduct the proceedings moved the court for a judgment of removal from office on charge 8(c). Counsel for Judge OSTERMAN cross-moved to dismiss that charge. On the oral argument it was conceded that when Judge OSTERMAN came before the Grand Jury it and the prosecutor were in good faith investigating into alleged public corruption related to the State Liquor Authority, that they sought in good faith to question the Judge in connection with that inquiry, and that Judge OSTERMAN on that and on a previous occasion was informed that such was the purpose of the questions the prosecutor wished to ask him, also that the Judge knew when he came before the Grand Jury that the alleged matters about which it was desired to question him were as of the period during which he was a Judge.
The question, therefore, to be answered by the court on these motions is this: is a Judge of a high court of the State guilty of wrongdoing amounting to cause for removal when he refuses to co-operate in an investigation of alleged corruption in a State agency except on condition that he be given immunity from prosecution for any crimes of his own disclosed by his answers? The issue can fairly be so stated since, although Judge OSTERMAN offered to waive as to questions about his judicial conduct, he had been plainly told that the intent and purpose was to question him not as to such conduct but as to corruption in a named State agency. We do not have a situation where a Judge is,...
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