Schweitzer, Matter of
| Decision Date | 23 September 1971 |
| Citation | 409 N.Y.S.2d 964 |
| 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 Mitchell D. SCHWEITZER, Justice of the Supreme Court, First Judicial District. |
| Court | New York Court on the Judiciary |
Before FULD, P. J., and SCILEPPI, CAPOZZOLI, HOPKINS, HERLIHY and DEL VECCHIO, JJ.
On January 18, 1971 Hon. HAROLD A. STEVENS, Presiding Justice of the Appellate Division of the Supreme Court, First Judicial Department, under the authority vested in him by section 22 of article VI of the State Constitution, requested Chief Judge STANLEY H. FULD To convene a Court on the Judiciary "to consider matters involving the conduct of Mitchell D. Schweitzer, A Justice of the Supreme Court of the State of New York, First Judicial District". A letter of that date from Presiding Justice STEVENS to the Chief Judge read as follows:
chairman. This Committee was to investigate, study and make a report of its findings to this court. Within the past week an extensive transcript and digest of the legislative hearings was released by the Legislative Committee to the press. Because of the extensive publication of the charges as contained in the transcripts, it has been concluded, after consultation with my Associates, that the effectiveness of any action by the Judiciary Relations Committee has been impaired and that a wider forum is desirable in fairness to the Justice involved and for the protection of the integrity of the courts as well.
On January 21, 1971, pursuant to Presiding Justice STEVEN'S Request and in accordance with section 22 (subd. d) of article VI of the New York State Constitution, Chief Judge STANLEY H. FULD Convened the Court on the Judiciary. The Court on the Judiciary is composed of Hon. STANLEY H. FULD, Chief Judge of the Court of Appeals, who is Presiding Officer of the Court on the Judiciary; Hon. JOHN F. SCILEPPI, Associate Judge of the Court of Appeals; Hon. LOUIS J. CAPOZZOLI, Justice of the Appellate Division of the Supreme Court, First Department; Hon. JAMES D. HOPKINS, Justice of the Appellate Division of the Supreme Court, Second Department; Hon. J. CLARENCE HERLIHY, Presiding Justice of the Appellate Division of the Supreme Court, Third Department, and Hon. FRANK DEL VECCHIO, Justice of the Appellate Division of the Supreme Court, Fourth Department. Associate Judge JOHN F. SCILEPPI Was designated by order of the Court of Appeals to sit in the place of the Senior Associate Judge of the Court of Appeals due to the latter's absence at the time. Each of these Justices of the Appellate Division was designated as a member of the Court on the Judiciary by a concurrence of a majority of the Justices of his respective Appellate Division.
On February 12, 1971 the court sat, appointed Raymond J. Cannon as Clerk of the Court, and designated Lawrence E. Walsh of New York, New York, an attorney at law, to act as counsel to conduct the proceeding entitled: "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 Mitchell D. Schweitzer, Justice of the Supreme Court, First Judicial District".
Three subsequent sessions of the court were held at Albany on March 4, June 11 and September 2, 1971 at which Rules of Procedure were adopted, assistant counsel were appointed, counsel designated to conduct the proceeding was authorized to compel the attendance and testimony of witnesses and the production of books, papers and documents and upon motion therefor an order was entered granting immunity to and directing two witnesses to testify after they had refused to answer questions on the ground that their testimony might incriminate them.
The Chief Judge of the State of New York shall act as the presiding officer of this court. The death, sickness, resignation, removal from office, absence from the court or other disability of a member of the court shall not terminate its proceedings. If such a member is a member of the Court of Appeals, he may be replaced by a member of that court to be designated by that court. If such a member is a Justice of an Appellate Division of the Supreme Court, he shall be replaced by another member of the same Appellate Division designated by a concurrence of a majority of the Justices of such Appellate Division. If such member is not replaced within ten days, this court shall
proceed to discharge its responsibilities in all respects notwithstanding such vacancy. In the absence, inability or disqualification of the Chief Judge, the Associate Judge of the Court of Appeals sitting as a member of this court shall act as presiding officer, and in his absence, inability or disqualification, the remaining members of the court shall elect a presiding officer.
Four members of this court shall constitute a quorum. The affirmative concurrence of not less than four members of this court shall be necessary for a decision of removal, suspension pursuant to Rule X, or any decision finally concluding the proceedings before this court. Any other decision, ruling or determination may be made by a majority of the members present. A member shall not decide or take part in the decision of a question which was argued orally in the court when he was not present and sitting therein as a Judge. If a member is absent from a substantial part of a trial, the remaining members of the court may determine to complete the trial without his participation, in which event he shall not participate therein. A single member of the court may administer oaths and compel the production of books, papers, documents and records and the attendance of witnesses before the court or in any investigation conducted by counsel designated pursuant to Rule VI.
The court shall keep its records and hold its sessions, unless otherwise ordered by the court, at Court of Appeals Hall in the City of Albany. The hearings before this court shall be public. Any term of this court may be adjourned from day to day, or to a specified future day, by an entry in the minutes unless sooner convened by the presiding officer. Any member of this court may so adjourn a term thereof in the absence of a quorum.
The seal of the court shall be two and one quarter inches in diameter and shall consist of the device of the arms of the State of New York surrounded with the inscription: "State of New York Court on the Judiciary". The clerk of the court shall have custody of the seal.
The decisions, judgments, orders, notices and subpoenas of the court shall be attested by the clerk under the seal of the court.
Upon convening of the court, and thereafter as it determines, it may designate an attorney or attorneys at law to act as counsel to conduct the proceeding and designate a clerk, stenographer and such other officers and employees as it may deem necessary and appropriate.
Upon convening of the court or within a reasonable time thereafter, the presiding officer shall furnish to the other members of the court the request, complaint, evidence or information upon the basis of which he convened this court. The court shall thereafter determine whether further proceedings are warranted. If it concludes that they are not, an order shall be entered dismissing the proceeding. If the court concludes otherwise, it may authorize counsel to prepare charges, or it may authorize counsel to conduct such further investigation as it deems appropriate and thereafter to report thereon and to prepare charges. In conducting such investigation, counsel may be authorized to summon witnesses to appear and testify under oath before him and to compel the production of books, papers, documents and records. At the conclusion of such investigation or upon such date as the court may fix, counsel shall present charges or make such other report as may be appropriate. The court may thereupon determine preliminarily whether the charges state facts sufficient, if true, to
constitute cause for removal. It may authorize further investigation prior to the preferral of charges, or order the proceeding dismissed.
If it is determined that charges should be preferred and that they are in a form fairly permitting an answer, the following action shall be taken:
(a) Notice of such charges and a copy thereof shall be personally served upon the Justice charged.
(b) The presiding officer shall give written notice to the Governor, the Temporary President of the Senate and the Speaker of the Assembly of the name of the Justice against whom charges have been preferred, a copy of the charges and the date set for hearing them.
(c) A hearing on such charges shall be set not less than sixty days after service on the Justice charged and after the giving of notice pursuant to subparagraph (b).
The Justice charged shall...
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