Wilbur v. Howard, 277.

• Decision Date: 08 April 1947
• Docket Number: No. 277.,277.
• Citation: 70 F. Supp. 930
• Parties: WILBUR et al. v. HOWARD.
• Court: U.S. District Court — Eastern District of Kentucky

70 F. Supp. 930

WILBUR et al. v. HOWARD.

No. 277.

District Court, E. D. Kentucky, at Covington.

April 8, 1947.

Jesse K. Lewis, of Frankfort, for the complainants.

Sawyer A. Smith, of Covington, for the respondent.

SWINFORD, District Judge.

This case is before me on the respondent's motion to dismiss and upon final submission of the law and facts.

The proceeding is rather unusual in the course of the business of the court and may in some of its phases be novel in American jurisprudence.

The complainants are a group of persons identified in the record as ministers and others, residents of the 16th Judicial District (Kenton County, Kentucky). The respondent, Ulie J. Howard, is the duly elected and acting Commonwealth's Attorney of that district, an office which he has held since January 1927. The respondent is also an attorney admitted to practice in and whose name appears upon the roll of attorneys of this court.

The basis of the proceeding as alleged in the complaint is that the respondent by the conduct of his office as Commonwealth's Attorney is morally unfit to be an attorney at law in this Federal Court and asks that the court issue a rule to show cause why his name should not be stricken from its roll of attorneys. Upon the allegations of the complaint, after hearing on the motions, the court issued the rule and the respondent came before it in response thereto, whereupon issue was joined and testimony offered by both sides.

The first question that arises is the right of the complainants to institute such an action. There can be no doubt of the right of a citizen to bring to the attention of the proper authority acts and doings of public officers which the citizen feels are incompatible with the duties of the office, and from which conduct the citizen or public might or does suffer undesirable consequences. In this instance the complainants adopted the practice of a formal petition filed with the Clerk in the nature of a law suit. Possibly this formal procedure was irregular and should not have been permitted to be thus filed. It may have been just as effective to have mailed the complaint or petition in the form of a letter directly to the judge or have handed it to him on the street or to have tossed it into his automobile or carriage. At any rate it was the privilege of these citizens to seek redress of their supposed wrong. If the court accepted jurisdiction and issued the rule it then became the issue of the judge upon such terms as it deemed lawful and proper. I have heretofore in this proceeding declined to issue process without the payment of cost as in any other court proceeding. I felt that was a reasonable term to impose on one seeking the aid of the court, even in a case of this character and since the court had nothing before it at the time other than the complaint.

As said in In re Claiborne, 1 Cir., 119 F.2d 647, 650:

"Every court which has power to admit attorneys to practice has inherent authority to disbar or discipline attorneys for unprofessional conduct. Ex parte Wall, 1883, 107 U.S. 265, 273, 2 S.Ct. 569, 27 L.Ed. 552; In re Fletcher, 1939, 71 App.D.C. 108, 107 F.2d 666, certiorari denied, 1940, 309 U.S. 664, 60 S.Ct. 593, 84 L.Ed. 1011, rehearing denied, 1940, 309 U.S. 698, 60 S.Ct. 713, 84 L.Ed. 1037; Conley v. United States, 8 Cir., 1932, 59 F.2d 929; Hertz v. United States, 8 Cir., 1927, 18 F.2d 52. The proceedings for such discipline need not comply with all the formalities of process or other trial procedure. The informality by which action is taken, the charges made, or notice is given to the attorney charged with the misconduct, will not invalidate the proceedings. It is sufficient if the attorney has notice of the charges against him and an opportunity to prepare and present his defence. Ex parte Wall, supra, 107 U.S. at page 271, 2 S.Ct. 569, 27 L.Ed. 552; Randall v. Brigham, 1868, 7 Wall 523, 539, 19 L.Ed. 285; United States v. Parks, C.C. Colo., 1899, 93 F. 414; cf. Conley v. United States, supra, 59 F.2d at page 935; United States v. Hicks, 9 Cir., 1930, 37 F.2d 289, 292."

However, regardless of how the information may have been brought to the court the rule having issued, the cause is that of the court. In re Gilbert, 274 Ky. 187, 118 S.W.2d 535; 5 Am.Jur. 436, § 290; Randall v. Brigham, 7 Wall. 523, 540, 19 L.Ed. 285.

The first duty which any court owes is to keep its officers above suspicion. They should be men and women of such character and uprightness that their names will not be connected with unlawful and unsavory practices of a community. If the court is to maintain its boasted tradition of confidence in the minds of the people it must be diligent to see that those who assist in its conduct respect this ideal. Any other attitude is a breach of trust. Nothing less will satisfy. Aside from the usual ministerial officers a court is more dependent upon the attorneys who practice before it than any other single factor in the administration of justice. It cannot be lax in demanding the finest and best in the character of those who constitute that bar collectively and compose it individually.

Recognizing the utter dependence of the court upon the attorneys who are its officers and the consequent good or evil to the community the law gives wide latitude to a judge in determining of whom the bar before him shall be composed. In re Claiborne, supra.

That a proceeding to strike the name of an attorney from the roll is within the proper jurisdiction of the court cannot be doubted. Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed 552; In re Spicer, 6 Cir., 126 F.2d 288. As is pointed out in the case of In re Wells, 293 Ky. 205, 168 S.W.2d 733, an attorney may not be thus disciplined for trivial causes, but the power is not limited to cases where he would be subject to indictment or civil liability.

In Randall v. Brigham, supra, we find this pertinent language:

"The authority of the court over its attorneys and counsellors is of the highest importance. They constitute a profession essential to society. Their aid is required not merely to represent suitors before the courts, but in the more difficult transactions of private life. The highest interests are placed in their hands, and confided to their management. The confidence which they receive and the responsibilities which they are obliged to assume demand not only ability of a high order, but the strictest integrity. The authority which the courts hold over them, and the qualifications required for their admission, are intended to secure those qualities."

On the question of jurisdiction, in addition to the authorities I have referred to, see also: Chreste v. Commonwealth, 178 Ky. 311, 198 S.W. 929; Booth et al. v. Fletcher, 69 App.D.C. 351, 101 F.2d 676; Duffin v. Commonwealth, 208 Ky. 452, 271 S.W. 555.

Notwithstanding the clear right of a judge to strike attorneys from the rolls of the court over which he presides, this is a judicial authority and should be exercised sparingly and only in clear cases of misconduct. As is pointedly and well said in the leading case of Ex parte Wall, supra 107 U.S. 265, 2 S.Ct. 589:

"Undoubtedly, the power is one that ought always to be exercised with great caution; and ought never to be exercised except in clear cases of misconduct, which affect the standing and character of the party as an attorney. But when such a case is shown to exist, the courts ought not to hesitate, from sympathy for the individual, to protect themselves from scandal and contempt, and the public from prejudice, by removing grossly-improper persons from participation in the administration of the laws. The power to do this is a rightful one; and, when exercised in proper cases, is no violation of any constitutional provision."

While the rule should be rarely resorted to and sparingly used this is no excuse for a judge charged with the grave responsibility of administering justice to avoid applying it in a given case when the facts justify.

The record is large. More than eighty witnesses testified. The case took more than a week in the introduction of proof. It would serve no good purpose to review in detail this great mass of evidence in this opinion. Separate findings of fact are filed with the record.

The respondent, a very personable and gentle man, has served as Commonwealth's Attorney in the 16th Judicial District for more than twenty years. The record amply establishes that for the past twelve years gambling on a big scale has been carried on in his district. One of the largest gambling establishments in the middle west has proceeded to ply its trade, unmolested and unhindered. Under "wide open" conditions slot machines and hand books on race horses operated in cafes, restaurants and night clubs. According to the record from July 1, 1941, until February 9, 1942, there were more than three hundred individuals in Kenton County who paid the Federal occupational tax on slot machines. The names and addresses of those securing the licenses were published in the Kentucky Post and Kentucky Times-Star, two daily papers of a combined circulation in the county of more than twenty-five thousand. This number of persons has steadily increased each year. These machines and gambling devices are operated apparently without thought that they are law violations and judging from the attitude of some of the operators who testified with a rather resentful attitude that anyone should presume to question the right to operate them. The slot machines were for varying denominations from one cent to a dollar and played by men, women and children. A poll of 600 school children showed that 92% of them had seen slot machines, 87% had seen them played and 42% had played them.

No effort worthy of the name to enforce the gambling laws in Kenton County has been made by the respondent for the past decade. On one occasion in 1939, through the personal efforts of the then circuit judge, 196 indictments charging...