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In re the Proceedings Pursuant to Section 22 of Article VI of the Constitution

43 N.Y.2d a Court STATE OF NEW YORK COURT ON THE JUDICIARY Decision date 1977-09-06 English

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STATE OF NEW YORK COURT ON THE JUDICIARY
In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in in Relation to The Honorable Jacob D. Fuchsberg, Associate Judge of the Court of Appeals.
Present: Honorable James D. Hopkins, Presiding.
Honorable Arthur Markewich
Honorable Joseph A. Suozzi
Honorable T. Paul Kane
Honorable Richard D. Simons
On September 6, 1977 Chief Judge Charles D. Breitel ordered the convening of a Court on the Judiciary with respect to Jacob D. Fuchsberg, an Associate Judge of the Court of Appeals, as follows:
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 The Honorable Jacob D. Fuchsberg, Associate Judge of the Court of Appeals.
Pursuant to section 22 of article VI of the New York State Constitution, I hereby order the convening of a Court on the Judiciary to investigate, hear, and determine matters concerning the conduct of the above-named Associate Judge of the Court of Appeals indicated in the covering letter addressed to the Presiding Justice of the Court on the Judiciary in the transmittal of this order, and I appoint and designate The Honorable James D. Hopkins (an Associate Justice of the Appellate Division, Second Judicial Department) as Presiding Justice of this Court on the Judiciary; I also appoint the following as Associate Justices of this Court on the Judiciary: The Honorable Arthur Markewich (Associate Justice of the Appellate Division, First Judicial Department); The Honorable Joseph A. Suozzi (Associate Justice of the Appellate Division, Second Judicial Department); The Honorable T. Paul Kane (Associate Justice of the Appellate Division, Third Judicial Department); and The Honorable Richard D. Simons (Associate Justice of the Appellate Division, Fourth Judicial Department).
Charles D. Breitel (Signed)
Charles D. Breitel
Chief Judge of the State of New York
On September 6, 1977 Chief Judge Charles D. Breitel sent the following letter to James D. Hopkins, as Associate Justice of the Appellate Division of the Supreme Court in the Second Judicial District, appointing Justices to the Court on the Judiciary.
I am today convening, pursuant to the State Constitution (art VI, § 22, subd d), a Court on the Judiciary to evaluate the conduct of Associate Judge Jacob D. Fuchsberg, and to take appropriate action, if any, regarding his sales, purchases, and exchanges of New York City notes and Municipal Assistance Corporation bonds. I do so in consultation with and on the unanimous request of the other five Associate Judges of the court.
Judge Fuchsberg has been advised of this action as has been The Honorable Lillemor Robb, Chairwoman of the State Commission on Judicial Conduct.
The action is imperative, despite its evident personal and institutional painfulness and awkwardness, because of the critical necessity to maintain the morale and integrity of the court and to restore its standing in the confidence of the people of the State. The embarrassment permits of no avoidable delay. Inquiry directly by a constitutional Court on the Judiciary by independent counsel will provide maximum expedition and fairness to the public, the Court of Appeals, and each of its members, including Judge Fuchsberg.
Unlike other Courts on the Judiciary convened in the past, the convening of this one projects no preliminary findings concerning the propriety or impropriety of the conduct involved, in fact or in appearance. The evaluation of the conduct involved and resolution of the issues, and other relevant or pertinent matters, are left to the investigation and determination of the Court on the Judiciary. The compelling basis for the action taken is the disclosure of the financial transactions in the public press, Judge Fuchsberg’s public statement in response, and an inquiry instituted on my behalf and that of the Acting Chief Judge in my absence, two days after the press disclosure of July 13, 1977.
Many alternatives, all disagreeable, have been painstakingly explored. The delicacy of the issues and their impact on the highest court of our State, and all my colleagues on that court, and the inescapable constitutional responsibility placed
on me as Chief Judge of the Court of Appeals, offer no better alternative than the one chosen in this unprecedented crisis.
Following the unbroken practice when Courts on the Judiciary are convened, no details or available documents relating to relevant events are disclosed until and unless the Court on the Judiciary itself properly determines that release of confidentiality with respect to part or all of the material before it is appropriate.
Therefore, I have appointed you, a Justice of the Appellate Division for the Second Department, as Presiding Justice of the Court on the Judiciary. Associated as members of the court I have appointed the following Appellate Division Justices:
The Honorable Arthur Markewich, First Department
The Honorable Joseph A. Suozzi, Second Department
The Honorable T. Paul Kane, Third Department
The Honorable Richard D. Simons, Fourth Department.
A copy of my order is attached.
Your readiness and that of your colleagues to undertake this delicate and difficult task is appreciated.
Sincerely,
On October 12, 1977, a motion to rescind the appointment of Harold R. Tyler as counsel to the court was denied in the following order:
At a Court on the Judiciary for the State of New York held at the Courthouse of the Appellate Division on the 12th day of October A.D. 1977.
ORDER
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 The Honorable Jacob D. Fuchsberg, Associate Judge of the Court of Appeals
A motion having been made on behalf of Jacob D. Fuchs-berg for an order rescinding the court’s appointment of Harold R. Tyler, Jr., as its counsel on the ground that such appointment contravenes section 22 of article VI of the New York State Constitution, and papers having been submitted in support of the motion, it is
Ordered that the motion be, and the same hereby is, denied.
Irving N. Selkin (Signed)
Clerk of the Court on the Judiciary
Attest:

The opinion denying the motion to rescind appointment of Harold R. Tyler as counsel to the court reads as follows:

The motion to rescind the appointment of Harold R. Tyler, Jr., as counsel to the court is denied.

Prior Courts on the Judiciary have not hesitated to give a reasonable and sensible construction to the constitutional provisions pertaining to the powers of the court. So, even in the absence of specific constitutional authorization, in Matter of Waltemade (37 NY2d [a], [pp]), the court held that it had the power to designate a Referee to hear the evidence and report to the court without the court itself hearing the evidence; in Matter of Schweitzer (29 NY2d [a], [bb]) and Matter of PBngst (33 NY2d [a], [bb]), the court held that it had the power to suspend a Judge or Justice without pay following the filing of charges of misconduct against him.

Similarly, in the present case, where the Court on the Judiciary has been convened by the Chief Judge of the Court of Appeals on his own motion and not upon the recommendation of the Commission on Judicial Conduct, we do not read the provisions of section 22 of article VI of the Constitution as a limitation on the powers of the court to select counsel. The Constitution recognizes the power of the court to select the attorney for the commission as its counsel, but the recognition of this power does not concomitantly exclude the power of the court to select counsel other than the attorney for the commission under the circumstances here present.

Presiding Judge Hopkins and Judges Markewich, Suozzi, Kane and Simons concur in Per Curiam opinion. Dated: October 12,1977 Attest:

On November 16, 1977 Chief Judge Breitel ordered the investigation expanded to include other matters:

CONFIDENTIAL

Upon the request of the Court on the Judiciary and its counsel, and pursuant to section 22 of article VI of the New York State Constitution, I hereby order that the Court on the Judiciary convened in the above matter by order dated September 6, 1977, investigate, hear, and determine matters concerning the conduct of the above-named Associate Judge of the Court of Appeals other than and in addition to those specified in the September 6, 1977 transmittal letter to The Honorable James D. Hopkins, Presiding Justice of this Court on the Judiciary, to wit:

allegations that the above-named Associate Judge of the Court of Appeals obtained the advice and assistance of experts on the law and others in proceedings before the Court of Appeals in a manner not consistent with the requirements of section 33.3 of the Rules Governing Judicial Conduct (22 NYCRR Part 33 [1974]) and Canon 3 of the Code of Judicial Conduct as adopted by the New York State Bar Association (1973); and allegations that the above-named Associate Judge of the Court of Appeals engaged in and committed other violations of Rules and Canons governing judicial conduct including, but in no way limited to, sections 33.2 and 33.5 of the Rules Governing Judicial Conduct (22 NYCRR Part 33 [1974]) and Canons 2 and 5 of the Code of Judicial Conduct as adopted by the New York State Bar Association (1973).

At a Court on the Judiciary for the State of New York held at the Courthouse of the Appellate Division of the Supreme Court, Second Judicial Department, on the 29th day of December A.D. 1977.

Pursuant to section 580.9 of the rules of this court, it is hereby

Ordered that the next session of this court be held on January 16, 1978 at 10:00 a.m. at the courthouse of the Appellate Division, First Department; that the clerk notify counsel for respondent and respondent himself to be present; that the session be closed to the public, but that the proceeding be recorded by a court reporter.

James D. Hopkins (Signed)

Presiding Officer,

Court on the Judiciary

On February 21, 1978, a letter was sent from Herbert M. Wachtell, counsel for respondent, to Irving N. Selkin, as Clerk of the Court on the Judiciary, with respect to waiver of conñdentiality by the respondent.

During the course of the proceedings of January 16, 1978, there was discussion as to whether—should the court determine that the filing of a complaint against Judge Fuchsberg in this matter was not appropriate—the court would be empowered to issue a report reviewing the investigation that has been made and articulating the reasons for its determination. In this regard, inquiry was directed to the undersigned as to whether Judge Fuchsberg would be prepared to waive provisions with respect to confidentiality that would otherwise operate to inhibit the publication of such a report.

It was my thought at the time that I had indicated such a waiver on behalf of Judge Fuchsberg. However, in the course of a meeting yesterday with Judge Tyler on a separate subject, it was indicated by Judge Tyler that questions had been raised as to whether my wording of such intended waiver of confidentiality (Tr 84) had been conditional or otherwise insufficient to permit the court the latitude of rendering a report of this nature, should the court be so inclined.

To obviate any misunderstanding which may have resulted from my choice of language on the January 16 record, I wish hereby formally to set forth for the court that the waiver to permit the court to render such a report is intended to be entirely unconditional. This waiver is being expressed with Judge Fuchsberg’s full approval.

I hope that this lettér of clarification may be helpful to the court in its deliberations and respectfully request that a copy of this letter be furnished to each member of the panel. Judge Desmond, our cocounsel, joins in this letter.

The opinions on the censure of Jacob D. Fuchsberg read as follows: