In Re Haggerty

241 So. 2d 469, 257 La. 1, 1970 La. LEXIS 3298

Opinions

AYRES, Justice ad hoc.

This action is before this court on the recommendation of The Judiciary Commission of Louisiana that the respondent, Judge Edward A. Haggerty, Jr., of the Criminal District Court for the Parish of Orleans, be removed from office pursuant to charges directed against him under the provisions of Art. IX, Sec. 4, Par. B of the Louisiana Constitution as amended by Act No. 661 of 1968, which declare:

“A justice or judge may be removed from office or retired involuntarily for wilful misconduct relating to his official duty or wilful and persistent failure to perform his duty, or for habitual intemperance, or for conviction, while in office, of a felony.

“A justice or judge may be retired kir voluntarily for disability that seriously interferes with the performance of his duties and that is, or is likely to become, of a permanent character.”

After a preliminary investigation, the Judiciary Commission concluded that a hearing should be had upon the proposition of the removal of the respondent from office for the reasons and on the grounds of willful misconduct relating to his official duties, willful and persistent failure to perform his duties, and habitual intemperance, as well as disabilities seriously interfering with the performance of his duties. After a six-day hearing, the Commission resolved from the evidence that the respondent was guilty of charges warranting his removal from office.

The charges with which we are now primarily concerned include, among others, the following:

Willful misconduct relating to official duties, namely, gross and persistent violation of Canons I¹, IV², VI³, and XVII⁴ of the Canons of Judicial Ethics, adopted by the Supreme Court of Louisiana on October 13, 1960, as follows:

1. In participating and assisting in the organization of an assemblage for indecent purposes at the DeVille Motel in the City of New Orleans on December 17, 1969;

2. In obtaining and assisting in obtaining certain lewd and obscene motion picture films for showing at the assemblage ;

3. In participating with others in the assemblage and in the showing and exhibiting of certain lewd and obscene motion pictures and still photographs.

4. In contributing financially toward the cost of the assemblage;

5. In arranging for, or assisting in the arranging of, the attendance of three prostitutes at the assemblage;

6. In promoting or assisting to promote the three prostitutes to perform certain lewd and indecent acts, as well as acts of prostitution, at the assemblage;

7. In exhibiting personal conduct and behavior unbecoming a member of the judiciary at the time of the appearance of the officers of the New Orleans Police Department at the DeVille Motel and in striking the police officers, on the aforesaid date;

8. In participating in and condoning the participation of others in acts which violate the criminal laws of the State of Louisiana relating to obscenity and prostitution, on that date;

9. In associating with persons with known criminal records and reputations;

10. In participating in illegal gambling activities;

11. In conducting himself in such a manner as to bring disgrace and discredit upon the judicial office which he holds, resulting in a loss of public respect and confidence in his ability to perform his duties.

Respondent attacked the constitutionality of the Judiciary Commission and its proceedings and questioned the propriety or legality of the Commission’s acts under the Fifth Amendment of the Constitution of the United States in taking his prehearing deposition and its calling him under cross-examination. Specifically, the question is, May any finding of facts be based upon his testimony? The gravamen of defendant’s first contention is that the combination of investigative, prosecutive, and adjudicative powers in the Judiciary Commission offends due process. He contends there should be a separation of such functions. However, “It is well settled that a combination of investigative and judicial functions within an agency does not violate due process.” Pangburn v. C. A. B., 311 F.2d 349, 356 (CA 1, 1962), citing and discussing many authorities. See, also: Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); 2 Davis, Administrative Law Treatise, Sec. 13.02 (1958).

In this regard, it may be well to point out that the power of the Commission is to investigate disciplinary cases within the judiciary and then, if cause be shown, to only recommend removal or involuntary retirement to the Supreme Court. La.Constitution, Art. IX, Sec. 4 (1968). The Commission itself is not a court. It can render no judgment, civil or criminal. See, e. g., Federal Trade Commission v. Klesner, 280 U.S. 19, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838 (1929).

Under another provision of our state Constitution, the Civil Service Commission is authorized to investigate, as well as to hear and determine, charges in removal and disciplinary cases concerning classified employees. La.Constitution, Art. XIV, Sec. 15(0). The Louisiana courts have held that this combination of investigative and adjudicative functions does not violate due process. Vidrine v. State Parks and Recreation Commission, 169 So.2d 641 (La.App., 1st Cir. 1964), cert. denied 247 La. 348, 170 So.2d 867 (1965). We have not been cited nor does our own research reveal any authority supporting this contention of the respondent.

On the second of the questions above raised, the Commission, in conducting its investigation and subsequent hearing, assumed that the Fifth Amendment guarantees were available to the respondent in this disciplinary proceeding, although the authorities relied upon were the result of a closely divided court. Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967).

Notwithstanding that these cases are somewhat distinguishable from the instant case, it was seemingly taken for granted by the Commission that the respondent might not be required to testify. In this instance, however, after the preliminary investigation was instituted, respondent voluntarily filed a statement with the Commission concerning his activities on the evening and night of December 17, 1969. He did not claim any privilege under the Fifth Amendment. The voluntary furnishing of his exculpatory version of the incident waives his privilege against testifying with regard to it since this statement was furnished as part of the removal proceedings. McCormick on Evidence, Secs. 130, 131 (1954); 8 Wigmore on Evidence, Sec. 2276 (3d ed., 1961); 98 C.J.S. Witnesses § 456; 58 Am.Jur. “Witnesses,” Sec. 95 (1948 ed.). Subsequent statements were voluntarily filed by the respondent likewise waiving his privilege under the Fifth Amendment.

The cited law sources also reveal that a defendant in a criminal proceeding waives his Fifth Amendment privileges by voluntarily taking the witness stand, and that the privilege must be claimed personally by the witness entitled to it rather than by his attorney.

In the present proceedings, the respondent (in response to a subpoena) appeared for a prehearing discovery deposition on March 30, 1970. He then testified, voluntarily and without any personal claim to his privilege against self-incrimination. Preceding the taking of his testimony, respondent’s counsel stated that “by appearing here, Judge Haggerty doesn’t give up any of his rights under the United States Constitution * * * particularly the Fifth Amendment. * * * ”

Likewise, at the hearing itself, respondent testified when called upon cross-examination as well as upon direct examination when called by his own counsel. In neither instance did he make any personal claim to his privilege, although his counsel did note that his testifying was subject to his constitutional rights which the respondent possessed against testifying adversely to himself.

Aside from the waiver by the respondent by volunteering his statements after the Commission notified him of the preliminary investigation of causes for his removal or involuntary retirement, he likewise waived his right to refuse to testify by doing so voluntarily without any claim to his privilege under the Fifth Amendment. The privilege against self-incrimination is personal to the witness and may not be claimed by anyone else, not even liis own counsel. State v. Brown, 221 La. 394, 59 So.2d 431 (1952).

The Commission expressly noted, however, and we have likewise concluded that, even without respondent’s own testimony, other testimony in the record clearly establishes each of the specifications of misconduct which we hold proved, as will be hereinafter shown. For instance, respondent’s bringing the obscene films and the three prostitutes to the “stag” party are established by the undisputed testimony of other participants in the party. Other witnesses likewise established respondent’s persistent, frequent, and public illegal betting with Victor Manuel Soto and their association together, as well as respondent’s friendship with and indebtedness unto Frank Occhipinti, and respondent’s regular and frequent engaging in poker games at which he won significant sums from, among others, members of the bar practicing before him. Without respondent’s testimony, the testimony of others amply supports the Commission’s factual findings of misconduct.

It appears appropriate to first determine the character of this action. The rule appears to be established that an action of this character, for the removal of a judge, like a proceeding for a disbarment, is not a criminal prosecution but is in the nature of a civil action. An observation of this court in State v. Flynn, 160 La. 483, 107 So. 314, 315 (1926), is to the effect that:

“It is true, a few jurisdictions hold that proceedings of this character are of a quasi criminal nature, but the great weight of authority, including the Supreme Court of the United States, sustains the view that a proceeding to disbar an attorney is civil, not criminal, in its nature, and is governed by the rules applicable to civil actions; the purpose thereof being to purify the bar and not to punish the respondent. Thornton, Attys. at Law, § 867, vol. 1, p. 1282. See State [ex rel. Adams] v. Rightor, 22 So. 195, 49 La.Ann. [1015,] 1017.”

See, also: In re Mundy, 180 La. 1079, 158 So. 563, 565-566 (1934); Saint v. Irion, 165 La. 1035, 116 So. 549, 553 (1928).

In Sharpe v. State ex rel. Oklahoma Bar Association, 448 P.2d 301 (Okl.Jud., 1968), a judge-removal proceeding, the court pointed out that such proceedings are not criminal prosecutions; that the jurisdiction of the court is limited to the removal with or without qualification or to the compulsory retirement of judges; that the court was charged with the duty of making rules of procedure consistent with the rules of civil procedure or common law, and that rules appropriate to criminal prosecutions were inapplicable.

Thus, simply stated, the Code of Criminal Procedure is not applicable be cause, by its terms, it applies solely to prosecutions for violations of criminal law.

It likewise appears appropriate, at this stage of the proceedings, to point out that the charges relating to the alleged violations of the Canons of Judicial Ethics, except insofar as they are also denounced in the language of the constitutional provisions hereinabove quoted and upon which this action is predicated, are not of primary importance. As stated in State ex rel. Gremillion v. O’Hara, 252 La. 540, 211 So.2d 641, 648 (1968):

“Although the Canons of Judicial Ethics have great importance and meaning to members of the judiciary in setting the standard of conduct expected of members of the judiciary, they do not replace or modify the Constitution and the grounds for removal there stated.”

Thus, the Canons of Judicial Ethics do not, of themselves, have the force and effect of law. Unless the specific charges based on the Canons are also acts prohibited by the constitutional provisions, they do not of themselves constitute grounds for the removal of a member of the judiciary from his office. However, as will be hereinafter shown, the specific charges to which attention will be directed clearly come within the terms of the aforesaid constitutional provisions as constituting willful misconduct relating to respondent’s official duties.

Directed to the sufficiency of the-charges directed to him, the respondent interposed various pleas and exceptions to which attention should next be given.

Respondent first urged there be suppressed as evidence all property seized at the DeVille Motel as well as all the visual observations made there hy the police officers or others, and all testimony relating to such observations, and, in addition, all taped and recorded conversations or other evidence garnered as a result therefrom or from any observations made in or about the location, primarily for the reasons that the search and seizure were not incidental to a legal arrest of the respondent nor made under the authority of a search warrant; that no crime was being committed in the presence of the police officers, who were not armed with a warrant for an arrest, and that the search and seizure and respondent’s arrest were effected without probable cause.

On a basis of and through the motion to suppress, respondent also objected to the admission of certain evidence on the ground that it was a product of illegal search and seizure and of illegal arrest. Evidence objected to included any testimony of the events of the “stag” party of December 17, 1969, as overheard through a radio-bugging device hidden from view in the clothing of a police informer, Brewer Pence. This testimony, it was contended,. formed no basis for the arrest without a warrant since it did not furnish reasonable cause to the police officers to believe that criminal acts had been committed out of their presence. The evidence shows that Pence was invited into the gathering which, in fact, was not seriously barred to anyone willing to contribute $5 for admission. Under these circumstances, a recording of conversations overheard through this radio eavesdropping device is not regarded as the product of an unlawful entry or unlawful search and seizure as protected against by the Fourth Amendment of the Constitution of the United States. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed. 2d 312 (1966); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).

We find no merit in the claim there was a violation of the Fourth Amendment to the Constitution of the United States.

Recent federal decisions have consistently held that evidence obtained by eavesdropping under conditions similar to the present was not secured through illegal search and seizure and the evidence obtained thereby was admissible. Koran v. United States, 408 F.2d 1321 (CA 5, 1969); United States v. Kaufer, 406 F.2d 550 (CA 2, 1969). The latter was affirmed in a per curiam opinion, 394 U.S. 458, 89 S.Ct. 1223, 22. L.Ed.2d 414 (1969).

See, also, Holt v. United States, 404 F.2d 914 (CA 10, 1968), cert. denied, 393 U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 779 (1969).

From all the aforesaid federal cases, a rule appears to have developed that testimony recorded by means of a “bugging device” is admissible in evidence in the absence of a trespass or unlawful entry upon the premises where the testimony recorded takes place. Tape recordings are admissible for the purpose of corroborating the testimony of a witness thereto

In a motion therefor, respondent sought additional particulars in numerous instances with general reference to the names and whereabouts of witnesses and the sources and nature of their evidence which the Commission intended to use. This application was without merit and was properly overruled. The Commission treated this motion as a plea of vagueness and overruled it as requesting evidentiary detail, and held that the factual allegations, except with relation to respondent’s disability, were sufficiently specific to fairly inform the respondent of the charges against him and of the nature of the facts sought to be proved so as to enable him to prepare his defense. In this we agree and point out that in the case of In re Novo, 196 La. 1072, 200 So. 466, 467 (1941), proceedings of this nature, it was held the technical niceties required in suits be tween private parties where the court is called upon to adjudicate conflicting claims is not essential, and all that is required is that the charges against the respondent shall be so specific as to fairly inform him of the misconduct of which he is accused. See, also: In re Mundy, 180 La. 1079, 158 So. 563, 565 (1934); State v. Flynn, 160 La. 483, 107 So. 314 (1926).

In the former case it was emphasized that:

“ * * * a disbarment proceeding, being civil in its nature, was governed by the rules applicable to civil actions. But this does not mean that the petition in a disbarment proceeding must be drawn with the same precision of statement or with the same adherence to the codal formalities or recognized technicalities of pleading that are required in petitions in civil suits. It is sufficient if the petition in such a proceeding fully and fairly informs the defendant of the charge or charges, so as to enable him to prepare his defense." (Emphasis supplied.)

See, also: In re Steiner, 199 La. 500, 6 So. 2d 641, 643 (1942); In re Mundy, 180 La. 1079, 158 So. 563, 565 (1934).

In a judicial-removal action, Stanley v. Jones, 197 La. So.2d 45, 52 (1941), the court, after stating:

“Where a petition is explicit in substantial particulars, there can be no just reason for maintaining that plaintiff’s cause of action is vague. Godchaux v. Bauman, 44 La.Ann. 253, 10 So. 674. Verbal precision is not exacted and technicalities are not favored in our system of pleading. Regard is paid to the general force and meaning of the allegations, considered together; and when thus considered, they present a cause of action, and they should be given effect. Kellar v. Victoria Lumber Co., 45 La. Ann. 476, 12 So. 511,”

made this appropriate observation:

“All that was required of plaintiff zms to fairly inform defendant of the offenses with which he was charged so as to enable him to prepare his defense."

We make the same observation here as was made there:

“ * * * that plaintiff has done this, and that the allegations of the petitions, taken together are sufficient to place defendant on his guard and not take him by surprise.”

If there should have been any doubt about the sufficiency of the petition, it must be noted ample provision was made by the Commission that, should respondent have been actually surprised by any evidence tending to establish a particular delinquency, the Commission would consider and give effect to any motion by respondent for curative relief at the close of the evidence. This was done at the close of the hearing on May 23, 1970, when the Commission reserved to respondent the right to request a supplementary hearing to enable him to produce further evidence in rebuttal or explanation of any such evidence adduced on behalf of the Commission or its executive officer. (This action gave respondent the advantage of having first heard the testimony several days in advance of the day on which he was required to produce proof on his behalf.) A hearing for that purpose was tentatively fixed for June 6, 1970. However, on June 1st, respondent notified the Commission that this further evidentiary hearing would be unnecessary if the Commission would permit the filing in evidence of nine exhibits in explanation of his numerous absences on court days as reflected by the minutes of his court. This offer was accepted by the Commission and the exhibits •were ordered filed in accordance with respondent’s request.

Jj .The respondent urged a motion to quash Rule VIII of the Commission on a basis that this rule was inconsistent with the rules of the Supreme Court which make provisions for a full and fair hearing.

The Supreme Court authorized the Commission to adopt rules of procedure for hearings before it “insofar as such rules provide a full and fair hearing.” Rule XVII, Sec. 21, Supreme Court of Louisiana. Pursuant to this authority, the Commission adopted its Rule VIII, which pertinently provides: “The Commission shall not be bound by the technical rules of evidence and may admit material and relevant evidence.”

Respondent moved to quash this rule and requested that the Commission strictly adhere to the rules of criminal procedure, including evidentiary rules applicable thereto. Objection was made to some hearsay and opinion evidence as inadmissible in criminal proceedings. The ground for the motion and the objections is that judge-removal proceedings are “quasi-penal,” as stated in State ex rel. Gremillion v. O’Hara, 252 La. 540, 211 So.2d 641 (1968).

In the first place, as already discussed, the present proceedings are not criminal proceedings but are civil in nature.

In the second place, the statute granting the Commission certain powers specifically authorized it to “require production 0f * * * evidence deemed relevant or material to the investigation or hearing.” LSA-R.S. 13:36. (Emphasis supplied.)

Due process restrictions do not inhibit the Commission from adopting its Rule VIII, as specifically authorized by statute. “The hearsay evidence rule, with all its subtleties, anomalies, and ramifications, will not be read into the Fourteenth Amendment.” Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 1098, 97 L.Ed. 1522 (1953). The trend of the law, particularly in non jury situations, is to permit the consideration of all evidence logically proba tive of a matter required to be proved. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); see 2 Davis, Administrative Law Treatise, Sec. 14.01 (1958).

As the cited Davis treatise notes, Sec. 14.10, the exclusionary rules of evidence, which have been tailored to the peculiar needs of juries, were designed for guiding admission or exclusion of evidence, not for weighing its reliability. Nor were they designed for quasi-judicial or administrative proceedings. In proceedings such as this, the reliability of evidence should be determined in light of the circumstances of each case, without regard to whether it should be considered inadmissible (as, for instance, hearsay) before a jury.

Under Rule VIII, the Commission is free to rely upon any evidence, if under the circumstances the evidence is found reliable, as well as relevant and material. Necessity for hearsay may justify its use, where for instance great practical inconvenience would be experienced in making the desired proof, such as by permitting a summary of many interviews or examinations rather than requiring each interviewer to testify or each document to be produced. Davis, Sec. 14.01; see, e. g., United States v. Mortimer, 118 F.2d 266 (CA 2, 1940), cert. denied, 314 U.S. 616, 62 S.Ct. 58, 86 L.Ed. 496 (1941), and Samuel H. Moss, Inc. v. FTC, 148 F.2d 378 (CA 2, 1945).

In the present proceedings, hearsay was relied upon in only two instances. We note, however, as the Commission noted, that, if this hearsay is excluded, then the respondent’s regular association with Soto, the latter’s criminal record, and his being engaged in illegal gambling activities is nevertheless proved without contradiction by the testimony of many of the witnesses, as well as partly by Soto’s own admission. Occhipinti himself admitted to past business association with Carlos Marcello, although, hearsay excluded, his and Marcel-lo’s criminal reputation was not before the Commission. Nevertheless, the respondent’s significant indebtedness to Occhipinti is proved by the latter’s own testimony, and other evidence shows that his brother, Roy, was subject to pending felony charges before the respondent ’ judge’s section of criminal district court of New Orleans.

With this hearsay excluded, the finding of fact would be slightly modified, in the respects just noted.

An exception of no cause of action was urged as to Charges 1, 3, and 4 which pertain to respondent’s participating arid assisting in the organization of an assemblage for indecent purposes, in participating with others in the assemblage in the exhibition of certain lewd and obscene motion pictures as well as still pictures of that character, and in contributing financially to the cost of the assemblage.

As to the first of these, it was contended that the facts particularized as misconduct constituted off-duty activities not within the purview of a constitutional removal ground; as to the third and fourth, that the alleged facts were not sufficiently alleged as required by Rule XVII, Sec. 4 (b), of the Supreme Court, that is: “The notice shall specify in ordinary and concise language the charges against the judge and the alleged facts upon which such charges are based.”

With respect to the first of these, the essence of respondent’s contention is that the activities charged do not constitute “willful misconduct relating to his official duty.” As already noted herein, the allegations include illegal gambling, participating in and assisting to organize an assemblage for indecent purposes, including the showing of obscene films and the procuring of women for purposes of prostitution and for the performance of indecent acts; in condoning criminal violations by others of the criminal laws of this State, associating with persons of known criminal records and reputations, as well as other off-duty activities which bring disgrace and discredit upon his judicial office and a loss of public respect and confidence in his ability and temperament to perform his duties.

There is no doubt but that the conduct and activities alleged and established by the record constitute violations of the standard of conduct required of a judge by both the Constitution and the Canons of Judicial Ethics adopted by the Supreme Court as binding upon members of the judiciary pursuant to its constitutional duty to supervise inferior courts. The conduct as constitutionally condemned and denounced is not “misconduct in office”; it is “misconduct relating to office.” The term “relating to” implies not only misconduct of a judge while performing his judicial duties but activities relevant or pertinent to the performance of his duties and responsibilities, or having a connection or a logical or natural association with the performance of his duties and responsibilities. As defined in State ex rel. Gremillion v. O’Hara, 252 La. 540, 211 So. 2d 641, 648 (1968):

“ ‘Misconduct’, in general, is improper conduct or wrong behavior, but as used in speech and in law it implies that the conduct complained of was willed and intentional. It is more than that conduct which comes about by reason of error of judgment or lack of diligence. It involves intentional wrongdoing or total lack of concern for one’s conduct. Whether or not an act constitutes misconduct must be determined from the facts surrounding the act, the nature of the act, and the intention of the actor.”

In Stanley v. Jones, 201 La. 549, 9 So.2d 678, 683 (1942), a judicial-removal proceeding in which a judge was removed for “gross misconduct” off the bench, as then denounced by a now-repealed prior constitutional provision, this court stated:

“The office of judge is one in which the general public has a deep and vital interest, and, because that is true, the official conduct of judges, as well as their private conduct, is closely observed. When a judge, either in his official capacity or as a private citizen, is guilty of such conduct as to cause others to question his character and morals, the people not only lose respect for him as a man but lose respect for the court over which he presides as well.”

The misconduct here charged and proved involves a persistent course of illegal behavior, which misconduct, without question, relates to and is logically and naturally connected with and bears upon and influences respondent in his office as judge of a criminal court. Such conduct is, moreover, sufficient to and does cast dishonor upon the judicial office, and cannot but be regarded as prejudicial to the administration of justice and to the popular respect for the judiciary. The off-bench behavior of a judge should not only be above reproach but such as to inspire confidence of the public in the judiciary. To consort with public gamblers and criminal characters, engage in heavy, habitual drinking in public, promote and be a part of a scandalous and sordid party in the company of prostitutes such as that held at the motel, resist arrest and engage in fisticuffs with arresting officers, are hardly things to put the judicial branch in good repute. No doubt such misconduct is related to the official duties of the respondent.

Also urged was a plea of vagueness. This plea is without merit. No showing was made wherein the charges were vague or indefinite or in what manner their amplification would be necessary or even desirable.

For the reasons hereinabove noted, we find no merit in any of the pleas and exceptions; nor do we find that respondent was harmed or prejudiced by any of the Commission’s rulings.

As noted in State ex rel. Gremillion v. O’Hara, 252 La. 540, 211 So.2d 641 (1968), judicial-removal proceedings are quasi-penal in nature. Therefore, a judge under investigation is entitled to protection under the minimum standards of due process and the right of him and his witnesses to claim the privilege against self-incrimination, the right to counsel, and to the production of and the examination of witnesses. These rights were recognized in the rules of and in the hearings before the Commission. Respondent had the benefit thereof.

On the merits, the misconduct here concerned involves, as already noted, • a persistent course of illegal behavior — public gambling, participating in and assisting to organize an assemblage for grossly indecent and illegal purposes, personal association with persons of criminal reputation, including, as the evidence disclosed, a significant indebtedness to a person closely associated with a purported underworld character, and whose brother was charged with a felony assigned for trial in respondent’s section of the criminal court. This misconduct was, in the Commission’s opinion, as well as ours, “related to” respondent’s office.

In reviewing this record we have ever been mindful of the premise that a decree of removal should not be imposed against a judge unless the proof is clear and convincing. Perez v. Meraux, 201 La. 498, 9 So.2d 662 (1942).

The facts and circumstances established in, this record abundantly support the Commission’s recommendations. The proof is .clear and convincing.

An affair, an alleged “stag” party, purportedly a traditional bachelor’s party, of intimate friends of Kenneth Reeves, in advance of his marriage, was held at the DeVille Motel on Tulane Avenue in the City of New Orleans on the evening and night of December 17, 1969. A raid on the party by a police vice squad precipitated an investigation which eventually culminated in the Commission’s investigation • and finally in a recommendation that the respondent be removed from office.

There is no doubt that the party was for indecent purposes and that respondent participated and assisted in its organization. By his own admission, he contributed $5 before the party to assist in its arrangement and $10 after the party assembled. From the testimony of Brewer Pence, who was present at the party, and from the testimony of most of the participants who were called either by the chief executive officer of the Commission or by the respondent, it is clear that respondent as well as the other participants knew that the “stag” party was to assemble in the rooms to be secured for it in the DeVille Motel; that respondent brought the obscene films to the party, and that these pornographic motion pictures were shown at the party in the presence of those attending, including three prostitutes whom respondent brought to the party.

An effort was made to excuse the assemblage as a traditional bachelor’s party of intimate friends in advance of the wedding of Kenneth Reeves. This does not appear to have been entirely ’’actually supported, for at least four strangers to Reeves-— Brewer Pence, George Costello, Alceste Ory, and A1 Miller — were admitted upon their payment of either $5 or $10. That this was, in fact, a bachelor’s party, honoring one soon to be married, is somewhat incredible.

Respondent, however, claims that the films he brought to the party were brought at the request of his court minute clerk. The testimony of the participants in the party, particularly the testimony of Ory, the barber from whom the films were secured, and Max Williams, shows that respondent brought them to the party with full knowledge of their pornographic character.

While the Commission found the record did not support a finding that respondent knew or participated in the showing of obscene still photographs brought to the party by Harold William O’Brien, Jr., nevertheless the virtually uncontroverted testimony established respondent’s participation as a member of the group in the showing and exhibiting of hard-core pornographic motion pictures at the assemblage.

Respondent freely admitted that he invited the three women to the party and that he accompanied them across the street from the Rowntowner to the DeVille Motel. This he accounts for as being a mere joke, and that he did not know the women were prostitutes. Although the testimony does not establish that either of the three had ever been convicted of offenses related to prostitution, conviction is not the only method by which it may be established that one is, in fact, a prostitute. It is incredible that respondent did not know the character of these women. It is unthinkable that, knowing the character of the party and the nature of the films to be shown, respondent would have invited decent women to the party. The record leaves no room for doubt that these women were practicing one of the oldest and most dishonorable of the professions.

While many of the witnesses obviously hedged on the proposition when questioned, nevertheless, from the testimony of Malcolm Munday, Max Williams, Joan Clemens, and George Costello, there is no doubt that the women were present during the showing of the films. Moreover, the police informer testified that the respondent had, by prearrangement, personally procured these women to attend the party to put on an indecent show and for the purpose of prostitution. This, it was testified, he did upon O’Brien’s failure in a mission assigned to him. Whether by prearrangement or otherwise, respondent’s conduct in inviting and bringing these prostitutes to the party was improper. It was most reasonable to conclude their presence would lead to lewd and obscene public performances as well as to acts of prostitution.

Before coming to the party, the three women ordered dinner at the Rowntowner. If it should be conceded that their invitation and initial appearance at the party was a joke, their return to the party after dinner and remaining during the showing of the movies and until the police raid was certainly no joke; no one contends that it was.

During the raid, respondent’s personal behavior was not that of a reasonable,' in nocent victim caught up in a raid. As the police raid began, respondent left the room in which the pornographic films were being shown. He continued in a fast walk or trot to leave the scene notwithstanding he was informed by a plainclothes officer that he was under arrest. He resisted the efforts of two uniformed officers to arrest him in the corridor about forty-two feet from the door of the room which he had just left. After a struggle with the officers he was brought back to the room. Nevertheless he tried to break away and precipitated a further struggle by striking one or more of the officers. To subdue him, it was necessary for the police to resort, to physical force, the details of which are unnecessary to mention. This conduct was not compatible with innocence or respectable behavior due by a member of the judiciary even though he may have thought the arrest was technically illegal. . .

The record establishes that respondent participated in and condoned the participation by others in acts violating the criminal laws of this State relating to obscenity and involving the public showing of hard-core pornography at an assemblage where strangers were permitted admission upon the payment of a fee.

The record moreover establishes, through the virtually uncontradicted evidence of all witnesses, respondent regularly and frequently associated with Manuel Soto, a “bookie” or operator of-an illegal handbook to make racing bets, and that respondent bet with the “bookie” frequently in public and on an almost daily basis. His action in this respect showed to the public an apparent condonation of the illegal activities of the “bookie.”

The record also establishes that respondent had a close relationship and frequent association with Frank Occhipinti, manager and part owner of the Rowntowner Motor Hotel across the street from the DeVille Motel. Occhipinti permitted respondent to become indebted at the hotel’s bar and restaurant in an amount exceeding $1,700. It appears no request or demand for payment was made or that respondent was presented 'with a statement. Occhipinti himself admitted his business relationship with a purported underworld character of the New Orleans area.

During the period in which respondent became indebted unto Occhipinti, Occhipinti’s brother’s case was allotted to respondent’s section of the Criminal District Court in February, 1969. Numerous motions in that prosecution were heard by respondent. No attempt was made for reassignment or reallotment of the case, nor did respondent recuse himself. The defendant in that prosecution frequently visited his brother at the Rowntowner where respondent often spent part of his time. This was a matter, as was respondent’s association with Soto, about which respondent was questioned during a preliminary investigation. Thus respondent had notice that these matters were subjects about which inquiries would be made in the subsequent investigation.

In addition, the proof establishes that respondent regularly, persistently, and frequently, over a period of years, participated in illegal gambling activities. He not only associated with Manuel Soto, as aforesaid, but placed bets with Soto frequently on an almost daily basis; and this he did publicly. This participation in illegal gambling activities was open and notorious, well known to all those who frequented the public bar of the DeVille. Respondent’s activities and participation in these illegal acts could have no other effect than to encourage others to participate in similar activities without anticipation of prosecution therefor.

Through inquiry in a discovery deposition respondent’s attention was directed to the fact that his conduct with reference to poker playing at the DeVille Motel would constitute a matter to be investigated. Evidence in the record indicates that, at these regular poker games, the big winner won as much as $200 nightly, and that many of the participants included several members of the bar who were practicing criminal law before respondent. The evidence, moreover, establishes that respondent was generally the winner, and that the winner paid the rental on the room utilized in the gambling operations. The usual rate was $12. Between June 24, 1969, and January IS, 1970, forty-four nights’ room rental was charged to respondent as the winner.

Everyone elected to public office is required, before assuming the duties of that office or before being inducted into that office, to take the oath prescribed by the Constitution. Thus, in the course of being inducted into office, one swears or affirms that:

“ ‘ * * * I will support the Constitution and laws of the United States and the Constitution and laws of this State; and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [naming the office], according to the best of my ability and understanding. So help me God.’ ”

LSA-Const. Art. XIX, Sec. 1.

Respondent, as judge in the Criminal Court of the Parish of Orleans, had the sworn duty, under his oath of office, to support the Constitution and laws of this State. The laws which, by his oath he swore to uphold, include the laws with respect to pornographic literature as well as gambling activities through “bookies” and otherwise. His activities in those respects were not single or solitary instances but were continual over a period of years. His were persistent acts, of frequent occurrence. His acts were willful and intentional. He did what he willed or intended to do. A presumption exists to the effect that one pre sumes the consequences of his deliberate acts.

The term “misconduct” implies a wrongful intention and not a mere error in judgment. Moreover, misconduct is improper or wrong conduct and, when intentionally or deliberately done, becomes willful misconduct. Misconduct in office is any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Therefore, the frequent, flagrant, intentional, and deliberate violation by respondent of his oath of office, particularly with respect to the charges relating to gambling, pornography, and his participation therein in the manner heretofore noted, constitutes willful misconduct relating to his official duties.

The conclusion is inescapable that the basis and justification for carrying out the Commission’s recommendations are established by strong and convincing evidence. Thus, the views we entertain are substantially the same as those of the Commission in unanimity which are stated in part:

“ * * * that, on the whole, the respondent judge’s public misconduct off the bench is so. seriously delinquent as to bring disgrace and discredit upon the judicial office and a loss of public respect and confidence in his ability to perform his official duties impartially and conscientiously. The misconduct found is ‘related’ to his official duties, as involving public condonation of and participation in violation of the criminal laws the respondent judge is sworn to uphold. It also involves incidents, associations and general behavior prejudicial to the administration of criminal justice, as offering the opportunity for improper influence upon judicial actions and loss of public respect for the impartial administration of justice.

“In summary, perhaps none of the improprieties noted might be ground for removal by itself. Each perhaps might be subject to minimizing explanation as an isolated instance. In cumulation, however, they amount to a substantial pattern of willful misconduct related to official duty which casts a grave doubt upon the respondent judge’s ability to perform his duties impartially and in accordance with law, charged as he is with upholding gambling, obscenity and other criminal laws, and with the duty to maintain public respect for the orderly and disinterested administration of criminal justice. The excessive absences and tardiness likewise reflect a willful neglect of official duty not conducive to public respect and to orderly performance of judicial process. In cumulation the delinquencies amount to a gross disregard of the judicial obligations as set forth by the Canons of Judicial Ethics adopted by the Supreme Court of Louisiana.”

To tliis we add an observation by Justice Francois-Xavier Martin, a great Chief Justice of Louisiana, quoted by.Justice Poche in State ex rel. Attorney General v. Lazarus,. 39 La.Ann. 142, 1 So. 361, 376 (1887).

“ ‘All those who minister in the temple of justice, from the highest to the lowest, should be above reproach and suspicion. None should serve at its altar whose conduct is at variance with his obligations.’ ” (Emphasis supplied.)

To this, Justice Poche added:

“The trust to enforce this lesson of wisdom has been confided to the supreme court, and, although the task is unpleasant, it must be performed impartially and fearlessly.”

Hence, for the reasons assigned:

It is ordered, adjudged, and decreed that the respondent, Judge Edward A. Haggerty, Jr., of the Criminal District Court for the Parish of Orleans, State of Louisiana, be, and he is hereby, removed from office; and that the office be, and it is hereby, declared vacant.

TATE, J., recused.

Footnotes

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. I. THE JUDICIAL OBLIGATION.

The assumption of the office of judge casts upon the incumbent duties in respect to his personal conduct which concern his relation to the state and its inhabitants, the litigants before him, the principle of law, the practitioners of law in his court, and the witnesses, jurors and attendants who aid him in the administration of its functions.

In every particular Ms conduct should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private political or partisan influences ; he should administer justice according to law, and deal with his appointments as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity. As a necessary corollary, the judge must be protected in the exercise of his judicial independence.

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. IV. AVOIDANCE OP IMPROPRIETY.

A judge’s official conduct should be free from impropriety and the appearance of impropriety and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach.

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. VI. ESSENTIAL CONDUCT.

A judge should be industrious, temperate, attentive, patient, impartial, and, since he is to administer the law and apply it to the facts, he should be studious of the principles of the law and diligent in endeavoring to ascertain the facts.

A judge should be prompt in the performance of his judicial duties. He should recognize that the time of litigants, jurors and attorneys is of value and that habitual lack of punctuality or diligence creates dissatisfaction with the administration of the Court.

A judge should be considerate of jurors, witnesses and others in attendance upon the Court.

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.XVII. PERSONAL INVESTMENTS AND RELATIONS.

A judge should refrain, as far as is reasonably possible, from all relation which might affect him in the impartial performance of his judicial duties. He should refrain from all relationships which would prejudice or reasonably appear to prejudice his judgment.

A judge should not utilize information coming to him in his judicial capacity for his private advantage.