In re Stolen

214 N.W. 379, 193 Wis. 602, 55 A.L.R. 1355, 1927 Wisc. LEXIS 289

• Court: Wisconsin Supreme Court
• Decided: October 11, 1927
• Status: Published

Opinions

The following opinion was filed June 20, 1927:

Owen, J.

As indicated in the statement of facts, respondent moved that the complaint filed against him be dismissed for the reason that the acts complained of, if committed at all, were committed in his capacity as judge of the superior court of Dane county, a court of record, and this court is without jurisdiction, as such proceeding may result in the removal from office of a judge of a court of record, and that the constitutional provision for removal of such officers is exclusive. The superior court of Dane county is not a constitutional court, having been created by ch. 136, Laws 1917, which was amended in certain particulars by ch. 56, Laws 1919, and ch. 7, Laws 1925. At all times the judge of that court was required to be a practicing attorney, duly admitted to the bar of Dane county, and the statute provided that he might be removed from office in the manner provided by the constitution of this state for the removal of judges of the circuit court. By sec. 1, art. VII, o.f the constitution it is provided that all civil officers may be impeached, and by sec. 13 of art. VII it is provided that any judge of the supreme or circuit court may be removed from office by address of both houses of the legislature. It was argued that these constitutional provisions for the removal of judges are exclusive, and that they can be removed in no other way, and that, as the disbarment of the respondent would make him ineligible to hold the office of judge of the superior court and result in his removal, this court had no power to act in the premises.

The power to discipline and disbar attorneys at law is an inherent power of courts. Whether the constitutional provision relating to the removal of judges was intended as a limitation upon the power of courts to' discipline, suspend, or disbar members of the bar, we are not called upon here to determine, for the reason that the constitutional provision invoked has no application whatever to the respondent. The constitutional provision relates to the removal of judges of the supreme and circuit courts only. The superior court of Dane county is a legislative creation. The legislature has seen fit to require the judge of that court to be a member of the bar of Dane county. It has seen fit, also, to provide the manner in which he may be removed, and in prescribing that manner it has merely adopted the method prescribed by the constitution for removal of the judges therein mentioned. The method of removal, however, is one prescribed by the legislature and not by the constitution. The respondent, therefore, was not within the protection of the constitution, and we are not now concerned with the question of whether the constitutional provision thus invoked was intended to place any limitations upon the power of this court to discipline the members of its bar. Neither are we called upon to determine whether the legislature may impose any such limitations upon this power (although it must be most emphatically understood that we make no such intimation or concession), for the reason that by the act creating the superior court of Dane county it has made no attempt to do so.

A number of cases are cited in the brief filed in behalf of respondent to the effect that courts have no power, or at least should not exercise the power, to disbar or suspend attorneys who hold public office, for official misconduct in such office, especially where such suspension or disbarment would result in a vacancy in the office. Some of the cases so cited and relied upon are Matter of Silkman, 88 App. Div. 102, 84 N. Y. Supp. 1025; Matter of Strahl, 201 App. Div. 729, 195 N. Y. Supp. 385; State ex rel. Working v. Mayor, 43 Mont. 61, 114 Pac. 777; Baird v. Justice’s Court, 11 Cal. App. 439, 105 Pac. 259; In re Cooper, 12 Hawaiian, 124. But we do not find ourselves in agreement with the reasoning of those cases. One of the requisite qualifications for one who holds the office of an attorney at law is that he or she shall be of good moral character, in so far as it relates to the discharge of the duties- and responsibilities of an attorney at law. This is a continuing qualification. It is a qualification necessary to entitle one to admission to the bar, and the loss of such qualification requires his suspension. The respondent is a member of the bar of this court. The charges preferred against him challenge his moral integrity. Just a's it was the duty of this court to refuse him admission in the first instance upon a showing that he lacked the necessary moral qualifications, so is it its duty now to remove him upon like proof. In re O— , 73 Wis. 602, 619, 42 N. W. 221; In re Richter, 187 Wis. 490, 204 N. W. 492. The fact that he may be judge of the superior court, or that he may hold any other office, does not affect the duty or power of the court. Pie cannot take unto himself any office or position, or shroud himself in any garb, which will place him beyond the power of this court to keep its roster of attorneys clean. With the effect that will have upon his official station this court is not concerned. Its present concern is only that the act complained of discloses a lack of moral character constituting a continuing qualification to entitle him to remain a member of the bar of this court. If his suspension or removal as a member of the bar results in his disqualification for some other office, that •effect is but incidental, and is due to the provisions of the law which make his office as an attorney at law a requisite qualification for such other office.

As already stated, whether the legislature may limit our power in this respect need not here be determined, because, as we construe the act creating the superior court of Dane county, it has made no attempt to do so. But it is apparent from the act that the legislature considered that the judge of that court should be a member of the bar. It did that knowing that the certificate of such membership at-, tested not only to his legal ability but to his moral character. This was also a continuing qualification. State ex rel. Fugina v. Pierce, 191 Wis. 1, 209 N. W. 693. Just as this court requires continuing moral character to entitle one to retain membership in the bar of this court, so did the legislature require membership of the bar as a continuing qualification on the part of the judge of that court. From these considerations it is plain that the fact that respondent was, at the time the motion was made to dismiss, a judge of the superior court of Dane county, does not interfere at all with the power of this court to discipline him as a member of the bar of this court, but rather that the exercise of such power on the part of this court is in harmony with the legislative purpose in requiring the judge of that .court to be a member of the bar of Dane county. This conclusion is supported by In re Burton (Utah) 246 Pac. 188; State v. Peck, 88 Conn. 447, 91 Atl. 274; Hobbs’ Case, 75 N. H. 285, 73 Atl. 303; State ex rel. Dill v. Martin, 45 Wash. 76, 87 Pac. 1054; In re Simpson, 79 Okla. 305, 192 Pac. 1097; State v. Hays, 64 W. Va. 45, 61 S. E. 355; In re Norris, 60 Kan. 649, 57 Pac. 528; In re Breen, 30 Nev. 164, 93 Pac. 997.

In response to the contention that the misconduct complained of was misconduct in his character as a judge, and bore no relation to his duties and responsibilities as a member of the bar, we have only this to say: One’s morality or lack of morality is revealed by general conduct. One may lack morality in a great many ways. Where this lack of morality has no relation to, and does not affect, his duties and responsibilities as an attorney at law, the delinquencies are generally overlooked by the courts. But where there is lacking honesty, probity, integrity, and fidelity to trusts reposed in him, it matters not whether the lack of such virtues is revealed in transactions with clients, in the conduct of lawsuits, or any other business dealings or rela•tions. These qualities are highly essential on the part of those who are to exercise the privileges and responsibilities of members of the bar. When the lack of them becomes apparent, no matter what the character of the deal or transaction that may furnish the evidence, it becomes the duty of the court to purge its roster of an unreliable member. So if the respondent, by or through his acts as judge of the superior court, betrays a lack of the moral qualifications demanded of attorneys at the bar, it becomes the duty of this court to strike his name from the roll of its attorneys. With these prefatory observations, we come now to an analysis and a consideration of his conduct as revealed by the record before us.

It is conceded that the respondent, while acting as judge of the superior court of Dane county, a court exercising criminal jurisdiction throughout the county, .and before which court those charged with violations of the liquor laws were brought either for trial or preliminary examination, during the year 1924 made four loans from three notorious bootleggers. Not only that, but after making the loans he presided in court upon trials or preliminary examinations in cases brought against two of those from whom he had secured the loans. Respondent admits that this conduct was reprehensible and tended to bring courts and judicial officers into disrespect. That this constituted highly improper conduct is not controverted in the brief filed on the part of respondent. The defense of respondent is that he did not know that those from whom he made the loans were bootleggers. Whether this contention be true becomes very material and requires a careful consideration of all the evidence in the case. Under the established rule, the testimony of the respondent that he did not know that those with whom he was dealing were bootleggers must be accepted as true, unless outweighed by other facts and circumstances presented by the evidence.

The respondent is fifty-one. years of age, was born in Dane county, and graduated from the law school of the University of Wisconsin in 1905. Immediately after graduation he commenced the practice of the law in Mt. Horeb, Dane county, and continued in such practice until 1914, when he removed to Portage county and engaged in farming. In 1919 he returned to Madison, engaging in the practice of law in association with L. E. Gettle and A. T. Torge, and remained with that firm for a period of two years. In April, 1922, he was elected judge of the superior court of Dane county, and assumed the duties of that office July 3, 1922. From this it appears that during the greater portion of his life he was a resident of the vicinity of Madison, spent a number of years attending the University, presumably read the Madison papers, and must have been more or less conversant with matters of common knowledge and public affairs generally in that city. During the two years prior to his election to office he was a resident of, and in the practice of law in, that city. During this time it was a matter not only of common knowledge but of public notoriety that the portion of the city known as “Greenbush” or “Little Italy” was a center of lawlessness and bootlegging activities, and that conditions existing in that section constituted an outstanding civic and social problem in that city. This abundantly appears by clippings from the Madison press read into the record, showing, among other things, resolutions adopted by civic bodies in the city of Madison and published in the press calling attention to the public menace resulting from such conditions.

Before any of these loans were made, the respondent had served eighteen months as judge of the superior court, and during this time he had occasion to secure official information of the conditions existing in that district from the records of the court over which he presided. Indeed, his answer to the charges admits these conditions, but he further alleges that notwithstanding the fact that there was a large lawless element in this region, there abided therein a large element of good, well-meaning, law-abiding citizens. In this connection it may be said that the pastor of the Italian church, testifying in behalf of the respondent, estimated that ten per cent, of the residents of that community were bootleggers, while Phil LaFollette, the district attorney of Dane county in 1925, testified that sixty per cent, of the dwellings of that community were places of bootlegging activities. However that may be, no amount of credulity can exonerate the respondent of a knowledge of the general, lawless conditions of that neighborhood. To impute to him a lack of that knowledge would be to accuse him of the most childlike simplicity. Notwithstanding the fact that he was a most pronounced dry, when he became financially' embarrassed he repaired to this neighborhood for financial favors. He first went to Anton Navarro. Navarro was an outstanding, prominent citizen of that community. He was above the average in intelligence among the citizens of that community. Moreover, there is -evidence that he was engaged in commendable activities tending to promote Americanization efforts in that community and to stimulate higher ideals on the part of his countrymen. He was active in the work of a neighborhood house, an institution sponsored by civic societies in that community for the purpose of promoting Americanization work among the residents. When he was shot he received praiseworthy notice from the press of the city. Notwithstanding this, however, he was the friend and adviser of his fellow countrymen accused of crime, and, as stated, he was active in their behalf whenever they were brought into court accused of crime. It cannot be doubted that he was in close touch with the affairs of his community and was well acquainted with the character and business activities of those residing in this 'section of the city, and was the friend and adviser of the criminal classes. It was to Navarro that respondent went when he found himself in financial extremities. Navarro promptly arranged a. loan for him from LaBruzzo. La-Bruzzo ranked among the first ten bootleggers in that community. He had a prolific court record. There was no difficulty in promptly arranging a loan from LaBruzzo to the respondent of $500 upon respondent’s unsecured note, without any investigation as to his financial responsibility, without any questions asked, and without any interest demanded. ' When respondent asked, LaBruzzo about interest, LaBruzzo said, “Never mind about interest,” a remark which also was made by Randazzo and Menderino when he borrowed money from them.

We have, then, one who is known throughout the community as a pronounced dry, repairing to the notorious bootlegging section of the city for the purpose of securing a loan, and promptly obtaining it, from a bootlegger with a long court record. The personal relations existing between LaBruzzo and the respondent would not induce the loan. They were not friends. According to the testimony of the respondent they were not even acquaintances. He claims that he did not even recognize LaBruzzo and did not identify him as one who had been in his court on' prior occasions. Their pronounced attitude on the liquor question was diametrically opposite. The sentiments entertained upon that question by the respondent were inimical ,to the welfare of LaBruzzo. Whatever the respondent knew about LaBruzzo, it may be assumed that LaBruzzo knew a great deal about respondent and about his views upon the liquor question. The loan cannot be accounted for upon the ground that it was prompted by personal relations or relations of friendship. Neither can it be accounted for on the ground that it was a business transaction. The loan was sought by respondent only after he had exhausted his credit with the banks, according to his own testimony. If any examination was made concerning the responsibility of respondent; the result must have been adverse to the loan. Whatever prompted the respondent to seek- the loan, there can be no doubt as to the motives which prompted LaBruzzo in making the loan. He did it in the hope of intruding himself into the graces of a public official with whom his record show's he had occasion to come in frequent contact. This conclusion seems too plain to call for much further discussion or elucidation.

But it is said that no matter what considerations prompted LaBruzzo to make the loan, the respondent had no- thought that the loan so made by LaBruzzo was prompted by any such motives. This contention does scant justice to the intelligence of respondent as a man of public affairs. The circumstances already recited are sufficient to put simplicity itself upon its guard. It is impossible that the respondent should have thought that the loan was made from considerations of friendship or that it was made as a business transaction. When he went to “Greenbush” to negotiate this loan he knew that he was going into the very heart of the lawless element of the community. He knew that this community was not settled by men of wealth. He knew that the people of that community were either common laborers, small shopkeepers, or bootleggers, and he knew or should have known, or should at least have suspected, that the only men in that community who were likely to have money to loan were those engaged in the bootlegging business. He says that he did not know LaBruzzo, did not know that he was a bootlegger, and had no thought that he was prompted to make the loan in the hope of official favor. These statements certainly tax one’s credulity and betray a simplicity little to be expected from one who had had the opportunities of the respondent for observation and information concerning men and affairs in his immediate locality. We are forced to the conclusion that respondent knew the character of the persons with whom he was dealing, and that he should have known the reasons which prompted the loan. It is unnecessary to review the history of the other loans. They were made under similar circumstances and with the same character of'people.

We come now to consider the question of the consequences of these transactions as bearing upon the right of respondent to retain his certificate of admission to the bar. It may be conceded that as an ordinary citizen he had a right to borrow money from these men. It may be conceded that as a mere practicing attorney he would have had the same right. But he was not only an attorney. He was a judge of a criminal court before which these men were likely to be haled at any time and before which two of them were brought and over whose cases he presided after the making of these loans. The character demanded of an attorney at law includes the strength and stamina to act in accordance with recognized propriety under whatever circumstances he may find himself. The respondent knew that his position as judge carried with it a limitation upon his freedom of action not imposed upon the ordinary practicing attorney. There are many things which he might do with propriety as a practicing attorney which would be highly improper while occupying a judicial position. Unless one has the strength of character to resist temptations to do those things which are prohibited to a judge, then he does not have that moral character which is demanded of an attorney at law. The transactions which we are discussing reveal a lack on the part of the respondent of that degree of moral character.

We now come to consider the gravity of the offense. The action we shall take depends upon that. The respondent was a judge of a court of record. The court over which he presided constituted an important part of the machinery established by the State for the maintenance and the administration of justice. This is one of the great purposes of organized society. In the last analysis it is probably the ultimate end of government. As- once said by Mr. Chief Justice Winslow :

“Equal and exact justice has been the passionate demand of the human soul since man first wronged his fellowman; it has been the dream of the philosopher, the aim of the lawgiver, the supreme endeavor of the judge, the ultimate test of every government ,and every civilization. Pain and1 suffering may be bravely met, poverty and want endured without complaint, the daily round of exacting toil taken up with cheerful heart, but the soul of man in all ages has bitterly cried out against injustice and insistently demanded that it must not be. Every government past and present may be known and properly judged by the quality of the justice administered by its courts. The nearer the approach to ideal and perfect justice in the courts, the nearer the approach to Utopia in the government.”

The absolute impartiality on the part of those who preside over the court is a quality which a common sense- of propriety universally demands. He who presides over a court should be insensible to every influence except that which has a legitimate bearing upon the matter pending before him. Neither bias nor prejudice should animate the decision of a court. Every system of jurisprudence scrupulously provides a suitor with a trial before an unprejudiced judge. A prejudiced judge is abhorrent to settled notions of justice, and nothing tends to bring courts or the administration of justice into disrespect more than the spectacle of a prejudiced judge sitting in judgment upon the rights of litigants. A lack of confidence in the integrity of courts rocks the very foundations of organized society, promotes unrest and dissatisfaction, and even encourages revolution. For many years the integrity of the courts of this state has not been questioned. They have enjoyed the confidence of the people to a marked degree. Not since the impeachment of Hubbell have the courts been the subject of scandal nor the target of the poisoned darts of slander. One sitting as a judge who voluntarily places himself under obligation to the criminal element of his judicial district, even though that obligation be merely that of debtor and creditor, and who sits in judgment upon the case of his debtor, shocks the public confidence in his court and tends to bring the general administration of justice into disrepute. This is the nature of the respondent’s offense. It is very similar to the conduct of Lord Bacon, who took gifts from suitors and decided their cases against them, and for which he was sentenced by the House of Lords to undergo a fine and ransom of forty thousand pounds; that he should be imprisoned in the Tower during the King’s pleasure; that he should be forever incapable of any office, place, or employment in the state or commonwealth, and that he should never sit in parliament or come within the verge of the court. It has never been shown that Lord Bacon’s judgments were corrupted by these bribes. He evidently decided impartially the cases pending before him notwithstanding the bribes which he received from the suitors. It is claimed that none of his judgments rendered in such cases were reversed, but, notwithstanding this, Lord Bacon himself in later years said: “I was the justest judge that was in England these fifty years, but it was the justest censure in parliament that was these two hundred years.”

Cheerfully would we adopt the view improperly intruded upon this court in the guise of a brief amici curies, permission to file which was asked upon the oral argument, signed by sixty practicing lawyers of the Dane county bar, to the effect that as the respondent has resigned his office he has suffered sufficient punishment, but to do so would be to shirk grave responsibility. The surrender or forfeiture of his office as judge of the superior court was a natural and just result of his misconduct as judge of that court. But the conduct which he recognized had destroyed his usefulness as a judge and deprived him -of the»right to continue in that office must still be considered in connection with his right to continue as a member of the bar of this court. Conduct which calls for the resignation of a judge must forcibly challenge the fitness of one guilty of such conduct to continue to serve as a minister of justice in the capacity of an attorney at law.

It may be argued, and no doubt will be argued, as it was quite likely considered by the sixty members of the bar who petitioned this court for leniency in respondent’s behalf, that prior to the incidents in question he had borne a good reputation, .that he was induced to this misstep by reason of pressing financial circumstances, and that these acts of delinquency do not betray an inherent immoral character. To our minds it betrays the same weakness of character that prompts a bank officer to appropriate the funds of the bank with the hope and in the sincere belief that he will be able to restore the funds before the abstraction is detected. Such individuals generally have the sympathy of the public, but the stern policy of organized government demands that such conduct shall be punished. The laws-made to fit such cases stamp such conduct as immoral. He who is thus guilty cannot longer protest that he is a man of good moral character. He betrays a weakness of character which renders it extremely dangerous to continue him in positions of trust calling for honesty, fidelity, and integrity. Such qualities are pre-eminently demanded of members of the bar. These considerations alone call for the disbarment of the respondent. But there are other considerations which lead to a like disposition of this matter.

Ever since the decision in the case of Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, courts have expressed "the view that the disbarment of attorneys is not for the purpose of punishment but to protect the public and the courts from those who are unfit to be charged with the responsibilities of such office. This statement is made in that case, but the punishment therein referred to was punishment for the crime committed. In that case Wall was a member of a lynching mob, and it was said that his disbarment did not constitute punishment for his crime, and that, notwithstanding his disbarment, he was still amenable to criminal punishment. We consider that courts have the power to discipline the members of the bar, and whether they say so or not they are continually exercising the power to disbar for that very purpose. If this be not so, it is difficult to justify the suspension of an attorney for a limited period of time. If the only purpose of exercising the disbarment power be to protect the public and the court from dishonest lawyers, then in all cases the judgment should be permanent disbarment or for such a length of time as to give some reasonable hope for moral regeneration. This cannot take place in six months, a year, or two years, and yet suspensions for such periods of time are common. °We consider that suspensions of this character can only be justified on the ground that they are for disciplinary purposes and to act as a restraining influence upon others. This is a legitimate purpose to be accomplished by the exercise of all disciplinary power, and we shall now consider the proper disposition of this matter under this construction of our powers.

Respondent’s offense is one against the administration of justice. His offense has brought courts and the administration of justice into disrepute. Our disposition of this matter will give character to that offense. It will stamp it either as a serious offense or one lightly to be passed over. This is a responsibility not often devolving upon courts. Offenses against society are generally classified by the legislative branch of government by the penalty provided for the commission of such offenses. In dealing with this matter we do not have the benefit of a legislative characterization of the gravity of this offense. In this case the prerogatives of sovereignty to give character to such offenses must be exercised by the court. To excuse this offense, or to pass it by with mere censure, we feel sure would be to shock public conscience. The public would not very long retain confidence in their courts if the courts themselves regarded such conduct on the part of judicial officers lightly. Any disposition of this case which might be construed as a condonation of respondent’s offense would be scarcely less culpable than the offense itself. Serious offenses against the administration of justice on the part of ministers of justice should meet with stern and resolute action on the part of courts. To suspend an attorney for six months or a year for culpable misconduct amounts to little more than a condonation of such an offense, and illy serves to check the drifting of the bar away from the traditional ideals of the profession, which, recent revelations show, is becoming quite alarming in our state.

We consider that upon two grounds the judgment of this court must be as hereinafter - pronounced: first, the offense of respondent betrays a lack of moral stamina and, therefore, a lack of moral character, which renders the respondent an unfit person to hold the office of attorney at law; and second, the offense is of so grave a character as to call for serious treatment not only as a matter of discipline to the respondent but for its restraining influence upon others.

Before bringing this opinion to a close we deem it necessary to refer to the conduct of the sixty members of the Dane county bar who, in effect, sought to influence the action of this court by way of petition. Their manner of approach was no less that of petition because it took the form of a brief amici curies. The brief itself did not pretend to examine or analyze the evidence, and, so' far as a discussion of the law was concerned, it did no more than to cite a few cases upon the most fundamental propositions. If this was done deliberately and with the purpose of influencing the court, it was reprehensible. If done thoughtlessly and without any consideration, the opinions of these members of the bar are entitled to no weight, and, at any rate, this method of influencing the court falls within the condemnation of State ex rel. Rodd v. Verage, 177 Wis. 295, 330, 187 N. W. 830. If sixty members of the bar may thus petition the court with reference to matters pending before it, then sixty plumbers cannot be denied the same privilege. This' so-called brief amici curia; has not been received or filed. It will not be. The clerk is ordered to return it to those who presented it.

B,y the Court. — It is the judgment of the court that Ole A. Stolen be, and he hereby is, disbarred from practicing law in this state, and his name is hereby stricken from the roll of attorneys of this court: with the privilege, however, of making application for reinstatement as such attorney at law after five years from the date of the filing hereof.

The following opinion was filed June 24, 1927: