State v. McCarthy
| Decision Date | 12 July 1949 |
| Parties | STATE v. McCARTHY. |
| Court | Wisconsin Supreme Court |
On the 15th day of December, 1948, the Board of State Bar Commissioners filed in this court a petition praying that the defendant Joseph R. McCarthy be ordered to make answer to the petition, and if upon the trial of the issues he be found guilty of the matters therein charged that he be properly disciplined therefor by the judgment of this court.
Petitioners allege that the defendant Joseph R. McCarthy is now and was at the times herein mentioned an attorney at law licensed to practice in the supreme court and other courts of the state of Wisconsin and is and was at the times herein mentioned a resident of the city of Appleton, Outagamie county, Wisconsin.
That the defendant during the year 1946, while he was a duly elected, qualified and acting circuit judge of the 10th judicial circuit of the state of Wisconsin, presented himself as a candidate, ran for office, and was elected to a nonjudicial office of public trust, namely, the office of United States senator. That the defendant became such candidate and ran for the office of senator without resigning and surrendering his office as circuit judge.
That the defendant while such candidate and after having his attention directly called to the conflict existing between his incumbency in the office of circuit judge of the state of Wisconsin and his candidacy as United States senator, refused to surrender his office as circuit judge and the emoluments thereof, persisted in such candidacy and conducted an active campaign for the office of United States senator.That such conduct on the part of said defendant Joseph R. McCarthy constituted a violation of:
(a) The canons of ethics adopted by the American Bar Association and approved by the State Bar Association of Wisconsin;
(b) His oath as a member of the bar.
On January 14, 1949, pursuant to the order of the court the defendant filed an answer to the petition in the course of which he alleged as follows:
(1) Admitted that the petitioners constitute a majority of the Board of State Bar Commissioners and are duly appointed and qualified to act as such.
(2) Admitted that the defendant is now and was at the times herein mentioned, an attorney at law licensed to practice in the supreme court and other courts of the state of Wisconsin.
(3) Admitted that during the year 1946 the defendant was the duly elected, qualified and acting circuit judge of the 10th judicial circuit of the state of Wisconsin; that while so acting he presented himself as a candidate, ran for office, and was elected to a non-judicial office of public trust, namely, the office of United States senator.
(4) Admitted that defendant became such candidate and ran for the office of senator without resigning and surrendering his office as circuit judge for the 10th district of the state of Wisconsin.
(5) Denied that there was any conflict existing between his incumbency in the office of a state circuit judge and his candidacy as United States senator; denied that any demand to resign his circuit judgeship was made upon the defendant by any person or persons for or on behalf of the American Bar Association, the Wisconsin Bar Association, or the Board of State Bar Commissioners.
(6) Denied that any conduct on the part of the defendant constituted a violation of the canons of ethics adopted by the American Bar Association and approved by the State Bar Association of Wisconsin; and further denied that the defendant is a member of the American Bar Association or the State Bar Association.
(7) Denied any violation of his oath as a member of the Bar or the Bench, and alleged that his actions in running for the United States senate were done openly with no concealment from the courts or the State Bar Commissioners and that such actions were never complained of or criticized by the State Bar Commissioners until the present proceedings were commenced nearly three years after the actions now complained of were performed, and prayed that the proceedings be dismissed.
On the first day of February, 1949, the petitioners served a demurrer to defendant's answer, demurring upon the ground that upon the face thereof said answer does not state facts sufficient to constitute a defense. The matter was brought on for hearing on June 10, 1949.
Harlan B. Rogers, Portage, Special Counsel, for plaintiff.
P. J. E. Wood, Janesville (Zabel, Wolf & Zabel, Milwaukee, of counsel), for defendant.
The questions involved may be stated as follows:
(1) Did the defendant violate his oath of office by becoming a candidate to the office of United States senator while holding the office of circuit judge of the 10th judicial circuit?
(2) Did the defendant violate a standard of conduct established for judicial officers by running for the office of United States senator while occupying the office of circuit judge of the 10th judicial circuit of the state of Wisconsin?
(3) Did the defendant's actions evince such moral turpitude as to warrant his suspension or disbarment as an attorney at law?
The applicable provisions of the Constitution of the State of Wisconsin and of the Wisconsin Statutes are set out in the margin.1
On behalf of the petitioners it is argued that
If the word ‘office’ as used in the quoted provision of sec. 10 Art. VII, which provides that judges shall hold no office of public trust except a judicial office, applies to the office of United States senator, it is clear that the defendant violated the quoted provision of sec. 10.
We held in State ex rel. Wettengel v. Zimmerman, 1946, 249 Wis. 237, 24 N.W.2d 504, that the state either by constitutional provision or statutory enactment could not prescribe qualifications in addition to those prescribed by the constitution of the United States of a candidate for nomination for the office of United States senator, and for that reason the provisions of sec. 10, art. VII were ineffective against such candidate for the office either at a primary or general election, and for that reason the supreme court had no jurisdiction to cancel a certificate of nomination issued by the State Board of Canvassers merely because the nominee therein named was a circuit judge.
That as applied to a candidate for the office of United States senator the times, places and manner of holding elections for that office are those prescribed by the legislature of each state and therefore the right of Joseph R. McCarthy to have his name appear upon the ballots at the general election was a right guaranteed to him under the laws of the United States and could not be increased or diminished by a state action. In the opinion in that case the matter of dual citizenship under our form of government was dealt with and what was said there need not be repeated here.
In this case we are dealing with a pure state matter over which the federal government neither has nor claims any jurisdiction. We are here inquiring into the conduct, duties and obligations of the defendant as an attorney at law under the laws of the state of Wisconsin. The provision of sec. 10 art. VII that a circuit judge shall hold no office of public trust except a judicial office applied to the defendant before he became a candidate for the office of United States senator. His obligation under the provisions of sec. 10 were in full force and effect when he decided to become a candidate for the office of United States senator. While the state could not destroy or limit the defendant's right to become a candidate for that high office, it could and did prescribe his obligations as an attorney at law and a judge of the circuit court. That the office of a senator of the United States is an office of public trusts admits of no doubt and needs no discussion.
On behalf of the defendant it is argued that the decision in State ex rel. Wettengel v. Zimmerman, supra, limited the scope of the public policy declared in the constitution and the statutory law of this state and that under the terms of that decision the defendant was completely justified in relying upon it as a guide for his subsequent conduct as well as a vindication of his conduct previous to that time; that all of the facts in relation to the matter were within the knowledge of the State Board of Bar Commissioners who took no action in the matter until a complaint was filed in this proceeding.
The argument seems to be an attempt to interpose a bar to this proceeding on the ground that the State Board of Bar Commissioners and the courts of the state of Wisconsin have been derelict in failing to bring this matter up for consideration for more than two years. It is considered that this argument has no merit.
The case of State ex rel. Wettengel v. Zimmerman, supra, was an original action in this court in which it was sought to enjoin the defendant from having his name placed upon the official ballot at the November election as a candidate for the office of United States senator. After hearing, this court dismissed the petition for the reason that it had no jurisdiction to...
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