Waltemade, Matter of

• Citation: 409 N.Y.S.2d 989
• 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 Wilfred A. WALTEMADE, Justice of the Supreme Court, First Judicial District.
• Decision Date: 01 December 1975
• Court: New York Court on the Judiciary

Page 989

409 N.Y.S.2d 989

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 Wilfred A. WALTEMADE, Justice of the Supreme Court, First Judicial District.

Court on the Judiciary.

Dec. 1, 1975.

Michael F. Armstrong, New York City, counsel to the court (William O. Purcell, John Endicott, and Richard H. Blaker, New York City, also on the briefs).

Hawkins, Delafield & Wood, New York City, for respondent (William B. Lawless, New York City, of counsel, Allen P. Rosiny, New York City, with him on the briefs).

OPINION OF THE COURT

Before BREITEL, P. J., and JASEN, NUNEZ, COHALAN, SWEENEY and WITMER, JJ.

WITMER, Judge.

Following an extensive investigation by the Judiciary Relations Committee of the First Judicial Department of this State concerning allegations of judicial misconduct by Supreme Court Justice Wilfred A. Waltemade the committee on July 31, 1974 divided evenly in their recommendations to the Appellate Division of that department. Four of the committee recommended that he be publicly censured for his conduct. The other four recommended that the Court on the Judiciary be convened to hear the charges and determine what action should be taken. In light of that report and other suggestions the Chief Judge of the Court of Appeals, pursuant to the authority vested in him by subdivision d of section 22 of article VI of the Constitution of the State of New York, convened the Court on the Judiciary to investigate the matter of the alleged misconduct of Mr. Justice Waltemade.

In accordance with law and the rules of procedure of the Court on the Judiciary adopted by it (22 NYCRR 580.1 Et seq.) the court organized and designated counsel to make the investigation and report to the court. Included in the rules adopted by the court is the following provision: "The court may try an issue of fact, or direct a hearing thereof before one or more members of the court, or a referee, designated to hear and report" (22 NYCRR 580.7). In due time the court-designated counsel submitted 46 proposed specifications of charges against Mr. Justice Waltemade, and they were adopted by the court and duly served upon Mr. Justice Waltemade as respondent. Respondent served his answer to the charges; and the court designated former Judge of the Court of Appeals, The Honorable JAMES GIBSON, now serving as a State Supreme Court Justice, as Referee to hear the evidence to be presented on the issues and to report to the court. Respondent's motion to strike the charges as unconstitutional was denied, as was his motion that the court vacate its order designating the Referee and that the court En banc hear the evidence in the first instance.

The hearing before the Referee extended for a period of eight weeks from June into August, 1975; and the Referee filed his report with this court on September 24, 1975. In his report the Referee completely sustained 13 specifications of charges (to wit, Nos. 2, 5-10, 13, 15, 20, 23, 30, 42) and sustained in part two charges (to wit, Nos. 3, 44). He found that the remaining 31 charges were not established, but he pointed out that misconduct of a sort existed in many of them and that his conclusions with respect to such charges by no means indicated his approval of the conduct shown by the evidence therein.

On October 14, 1975 at Albany the court heard arguments by counsel for the court and for respondent with respect to the evidence submitted before the Referee and his report thereof.

At the outset we reject respondent's contention that this court cannot sit in judgment on this case without having personally heard the evidence presented before the Referee. Subdivision f of section 22 of article VI of the State Constitution empowers the Court on the Judiciary to make its own rules and procedures for the investigation and trial of complaints of misconduct, pursuant to which the court adopted rule 22 NYCRR 580.7 quoted in part above. A practical reason for the adoption and application of such rule is the constituency of the court, drawn as it is from the four corners of the State and consisting of Judges and Justices who are respectively part of other active courts requiring their regular presence. The court was created as a method of overseeing and disciplining the judiciary in a manner less cumbersome than the alternate methods, still reserved to the Legislature, of impeachment or removal (for a discussion of this question generally see Matter of Diener, 268 Md. 659, 662, 304 A.2d 587 Et seq., cert. den. 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885), and it cannot be concluded that it was intended to hobble the court by restrictive procedures. A reasonable and sensible construction should be accorded to these provisions (see People v. Ryan, 274 N.Y. 149, 152, 8 N.E.2d 313, 315; People ex rel. Davis v. Gardner, 45 N.Y. 812, 817-818). The concept is administrative in nature, the court being in a supervisory position over the judiciary of the superior courts of the State (Friedman v. State of New York, 24 N.Y.2d 528, 544, 301 N.Y.S.2d 484, 497, 249 N.E.2d 369, 378; see Keiser v. Bell, D.C., 332 F.Supp. 608, 615-616, holding the proceedings to be quasi-judicial administrative, not criminal; and see Mildner v. Gulotta, D.C., 405 F.Supp. 182).

The term "hearing" by the court (N.Y.Const., art. VI, § 22, subd. a) does not imply that the court, sitting En banc, must hear the evidence, but only that evidence be taken in a fair manner, with respondent having full opportunity to present his evidence and arguments in opposition to the charges, and that the court review and consider such evidence before reaching its decision. In Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288), in vacating a determination by the Secretary of Agriculture for failure to consider evidence taken before a subordinate, the court discussed the meaning of the words "full hearing". It held that, "The 'hearing' is the hearing of evidence and argument. If the one who determines the facts which underlie the order has not considered evidence or argument, it is manifest that the hearing has not been given" (pp. 480-481, 56 S.Ct. p. 911). "This necessary rule does not preclude practicable administrative procedure in obtaining the aid of assistants in the department. Assistants may prosecute inquiries. Evidence may be taken by an examiner. Evidence thus taken may be sifted and analyzed by competent subordinates. Argument may be oral or written. The requirements are not technical. But there must be a hearing in a substantial sense. And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them" (pp. 481-482, 56 S.Ct. p. 912). In Southern Garment Mfrs. Assn. v. Fleming, 74 App.D.C. 228, 232, 122 F.2d 622, Judge VINSON, later Chief Justice, wrote at page 626, "While 'the one who decides must hear', it must be remembered that 'hear' is used in the artistic sense of requiring certain procedural minima to insure an informed judgment by the one who has the responsibility of making the final decision and order. That did not necessitate the Secretary becoming a presiding officer at the hearing in the Morgan litigation (Morgan v. United States, supra ), and there is no more reason for finding such a command in * * * the instant statute." The United States Supreme Court itself adopted the practice in referring to a committee of three designated by it the hearing of charges of professional misconduct of an attorney (Matter of Capshaw, 65 S.Ct. 673). Thereafter it reviewed the record, accepted the committee's report and disbarred the attorney (Matter of Capshaw, 67 S.Ct. 1345; see, also, Matter of Crow, 359 U.S. 1007, 1008, 79 S.Ct. 1152, 3 L.Ed.2d 1025; Mildner v. Gulotta, 405 F.Supp. 182, Supra ; Stern and Gressman, Supreme Court Practice (4th ed.), § 10.12, pp. 407-408).

This interpretation of the term "hearing" has long been accepted in New York (Matter of Weekes v. O'Connell, 304 N.Y. 259, 107 N.E.2d 290; Matter of Elite Dairy Prods. v. Ten Eyck, 271 N.Y. 488, 496, 3 N.E.2d 606, 609). That has been the scheme of the constitutional and legislative provisions for removal of public officers (N.Y.Const., art. XIII, § 5; Public Officers Law, §§ 33, 34), as well as for the removal of civil servants (Civil Service Law, § 75, subd. 2). Likewise, in proceedings to discipline attorneys at law the "opportunity of being heard" (Judiciary Law, § 90, subd. 6) is provided through a hearing officer before a Referee designated by the Appellate Division, which then reviews and acts upon the record there made (Matter of Phillies, 17 A.D.2d 93, 231 N.Y.S. 601, mot. for lv. to app. den. 12 N.Y.2d 876, 237 N.Y.S.2d 347, 187 N.E.2d 797; Matter of Shea, 271 App.Div. 594; Mildner v. Gulotta, 405 F.Supp. 182, Supra ; Judiciary Law, § 90, subd. 9; 1 Carmody-Wait 2d, N.Y.Prac., § 3:212, p. 565).

Even in strictly legal proceedings, as distinguished from those of a disciplinary nature, a court may in certain proceedings effect a proper hearing by reviewing prior testimony (La Vallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179; People v. Graham, 27 A.D.2d 203, 277 N.Y.S.2d 943, affd. 27 N.Y.2d 616, 313 N.Y.S.2d 753). And, indeed, many State Constitutions provide for disciplining their judiciary by the highest court of the State upon a review of the evidence presented to a commission or master (see West's Ann.Cal.Codes, Const. art VI, § 18; Ann.Code of Md., art. IV, § 4B; Mich.Compiled Laws Ann., art. VI, § 30, subd. (2); NJSA, Const., art. VI, § 6, par. 4; Purdon's Penna. Statutes Ann., Const., art. V, § 18).

In accordance with such general provisions, it has been a common practice for the Court on the Judiciary, when convened from time to time, to adopt a...