Sharpe v. State ex rel. Oklahoma Bar Ass'n, 1

Citation448 P.2d 301,1968 OK 1
Decision Date04 October 1968
Docket NumberNo. 1,1
PartiesGlenn J. SHARPE, Appellant, v. STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Appellee.
CourtOklahoma Court on the Judiciary, Appellate Division

Syllabus by the Court

1. Provisions of the Constitution or statutes more recently adopted must prevail when in conflict with earlier provisions on the same subject matter.

2. A judicial officer is not entitled to a trial by jury in a proceeding before the Trial Division of the Court on the Judiciary.

3. A state is not required by the Sixth Amendment to U.S.Const. to grant a jury trial to a judicial officer who is sought to be excluded from present and future service on the judiciary on grounds having a rational relationship to his continuing fitness as a judge.

4. The due process clause of the Fourteenth Amendment is satisfied by the procedure provided in Art. 7--A, Okl.Const., which prescribes the manner for trial of proceedings before the Court on the Judiciary.

Appeal from Trial Division of Court on the Judiciary; R. L. Hert, Presiding Judge.

Proceeding to remove a judge from office. Trial Division entered judgment removing judge from office with disqualification. Judgment, as modified, affirmed.

Charles Hill Johns, James F. Howell, Toney M. Webber, Midwest City, for appellant.

Howard K. Berry, Oklahoma City, David L. Field, Enid, for appellee.

McINERNEY, Justice.

This is an appeal from the judgment of the trial division of the Court on the Judiciary rendered August 6, 1968 removing Glenn J. Sharpe from the office of County Judge of Bryan County, Oklahoma. Sharpe was further disqualified to hold any public office of honor, trust, or profit in the State of Oklahoma for a period of three years. These proceedings are being conducted pursuant to Article 7--A, Constitution of Oklahoma, adopted May 3, 1966.

Sharpe made a timely demand for jury trial which was refused. The denial of a jury trial forms the principal basis for this appeal. Two other propositions will be disposed of before reaching the principal question.

Sharpe was elected County Judge of Bryan County, Oklahoma and assumed that office in January, 1965. He was elected to a second term as county judge beginning January, 1967. As noted above, Article 7--A of the Constitution was adopted May 3, 1966 and formed a part of the organic law of this state prior to Sharpe qualifying for his second term of office. On May 17, 1968, a petition was filed by the Oklahoma Bar Association alleging, inter alia, that during the period from January 11, 1965 to July 26, 1967, Sharpe improperly received fees for the issuance of waiver orders which authorized the issuance of marriage licenses. This period of time covers both his first term and a part of his second term as county judge.

The record in this case reflects that Sharpe received and retained a sum in excess of $13,000.00 for issuing waiver orders dispensing with the blood test documents required by 43 O.S.1961 §§ 31 and 32, the three day waiting period required by 43 O.S.Supp.1965 § 5, and the age requirements of 43 O.S.Supp.1965 § 3. Sharpe contended that he was accepting gratuities for extra services rather than charging fees. The trial division rejected this contention and found that Sharpe collected and received monies for waiver orders not authorized by law and that this activity constituted corruption in office. The trial division then entered the order and judgment set out above.

Sharpe urges that the trial division should have dismissed the petition on timely motion prior to trial for the reason that the petition was improperly filed. This contention is based on the Executive Director of the Oklahoma Bar Association signing the petition rather that the Executive Secretary of the Oklahoma Bar Association, the title of the person designated in Section 4, of Article 7--A, Okl.Const.

After the passage of the amendment creating the Court on the Judiciary, the Supreme Court of Oklahoma adopted new rules creating and controlling the Oklahoma Bar Association. 5 O.S.Supp.1967 Chap. 1, App. 1, Art. 1 et seq. These rules become effective September 24, 1966. The governing body of the Association, formerly the Executive Council, was designated as the Board of Governors and the Executive Secretary was designated as the Executive Director. The possibility of a change in the name or nomenclature of the governing body of the Association is recognized in the constitutional amendment by the references to 'Oklahoma Bar Association, chosen by its Executive Council, Or other body exercising similar powers' in Art. 7--A § 2(b) and (c). The Board of Governors is the successor to the Executive Council. The Executive Director is the successor to the Executive Secretary, and exercises similar duties. The evident intent of the constitutional amendment was to permit the governing body and its executive officer to institute proceedings. A constitutional amendment should be construed in the light of its purpose and given a practical interpretation so that the plainly manifest purpose of those who adopted it may be carried out. McVickers et al. v. Zerger et al., Okl., 389 P.2d 977. The strict construction sought by Sharpe is contrary to the plainly manifest purpose of the people as expressed by their adoption of Article 7--A, Okl.Const. This proposition is without merit.

Sharpe objects to the admission into evidence of acts of malfeasance and misfeasance occurring prior to January, 1967 and during his first term of office. This objection is predicated upon his theory that this evidence would tend to prove a criminal offense rather than support a judgment removing him from office. We are unable to follow this reasoning.

Sharpe cites 22 O.S.1961, § 1181 and cases construing § 1181 to support this contention. In 1955, the legislature enacted 22 O.S.1961, § 1181.1 which specifically included acts committed during a previous term as grounds for removal. The assertion that § 1181.1, supra, has no bearing on the jurisdiction or scope of inquiry of this court is untenable. Acts or omissions committed during a previous or preceding term may be considered by the Court on the Judiciary. A trial conducted by the Court on the Judiciary is a special proceeding for the removal or compulsory retirement of judges. There is no reason or logic to hold the admission of evidence more restrictive in this court than permitted by 22 O.S.1961, § 1181.1.

We also observe that the evidence included receipt and retention of monies by Sharpe subsequent to January, 1967, the term of office held at the time of the trial. The sufficiency of the evidence is not seriously challenged. The evidence is amply sufficient to support the judgment rendered.

The principal contention of error is that Sharpe was denied a jury trial. In separate propositions, Sharpe asserts, first, that his right to a trial by jury is guaranteed by Article 2, §§ 6, 19 and 20 of the Constitution of Oklahoma and by Article 3, § 2, together with the 6th and 14th Amendments of the Constitution of the United States, and secondly, the judgment rendered is infamous punishment which can only be rendered by a jury for the conviction of an infamous crime. These propositions are so interwoven that they will be considered together.

Article 2, § 20, Okl.Const., provides, '(I)n all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: * * *'. The application of this section, and §§ 6 and 19, to the present case is to be determined by the nature of the proceedings in the trial division of the Court on the Judiciary.

An examination of Article 7--A demonstrates unequivocally that proceedings thereunder are not criminal prosecutions. The jurisdiction of the court is limited to the removal with or without disqualification or the compulsory retirement of judges. Article 7--A, §§ 1 and 4(d). The court is charged with the duty of making rules of procedure, § 3, or following the rules of civil procedure or common law, § 4(c). Jeopardy, civil or criminal, does not attach to the acts invoking the court's jurisdiction, § 4(d), as commanded by Article 2, § 21 of the Constitution relating to criminal prosecutions. The review in the appellate division is an equity review and the judgment may be affirmed, modified, reversed or a new judgment entered, § 5(c). The court is not empowered to imprison or fine a person brought before it. Both the structure and the intent of Article 7--A, Okl.Const., compel the conclusion that the proceedings contemplated are not criminal prosecutions. Article 2, § 20, Okl.Const., applies only to criminal prosecutions.

Sharpe contends that 21 O.S.1961, § 3 defines a crime or public offense. Disqualification to hold and enjoy any office of honor, trust, or profit under this State is one of the punishments enumerated under this section. § 3(5).

This section provides that a 'crime or public offense is an act or omission forbidden by law' and then enumerates the permissible punishments. Section 3, supra, does not create an offense or describe an act which is made criminal. The legislature must define offense by particular description of act or omission constituting it. A mere delineation of permissible punishments for a crime is insufficient to create a criminal offense. 21 O.S.1961, § 2. We have found no criminal statute imposing disqualification as a specific punishment for an act or offense in the criminal code. Sharpe cites no such statute.

Article 2, § 6, Okl.Const., provides that the courts of this State shall be open to every person to afford a speedy and certain remedy. The Court on the Judiciary is a court of this State, Article 7, § 1, Okl.Const., and...

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