In re the Removal from Office of Bolte

97 A.D. 551, 90 N.Y.S. 499

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1904
• Status: Published

Opinion

Xattghlin, J.:

The motion to dismiss the charges collectively and separately was in the nature of a demurrer on the ground that the facts stated, if proven, would not warrant the removal of the respondent. The ■denial of the motion and the order’ of reference necessarily involved an adjudication that if all the charges, were true they would justify his removal; but they do not necessarily constitute an adjudication that any one or more of the charges standing alone would be sufficient. Many of the charges are connected .and have a material bearing upon one another. One, therefore, taken by itself might be wholly insufficient, but, taken with others, might be convincing evidence that the respondent was unfit to hold a judicial office. It,, therefore, becomes necessary at the outset to consider the authority of this court to remove city magistrates and the grounds upon which it may be exercised. Section 18 of article 6 of the State Constitution of 1846, amended in 1869 and readopted in 1894 .as section IT of the corresponding article, provides that “ justices of the peace and judges or justices of inferior courts not of record and their clerks may be removed for cause after due notice and an opportunity of being-heard by such courts as are or may be prescribed by law.” The Legislature vested this power of removal in the^ General Term of the Supreme Court (Laws of 1880, chap. 354); and with the abolition of the General Term this authority and duty devolved upon the Appellate Division in the district where the judge or justice was elected or appointed. (State Const. [1894] art. 6, § 2; Code Civ. Proc. § 220 Rev. Greater F. Y. Charter [Laws of 1901, chap. 466.], § 1383.)

By virtue of these provisions of constitutional and statutory law the respondent may be removed for any misconduct in office or willful neglect of duty. A judicial officer may not be removed for merely making an erroneous decision or ruling, but he may be removed for willfully making a wrong decision or' an erroneous ruling or for a reckless exercise of his judicial functions without regard, to the rights of litigants, or for manifesting friendship or favoritism! toward one party or his attorney to the prejudice of another and to the destruction of his usefulness as a magistrate through the loss, of public confidence in his fairness or integrity.

The respondent was fifty-eight years of age. He is a graduate of' the public schools of the city of Few York, of Goldsmith’s Business. College,- of Columbia University, took a course of one year in civil law at Heidelberg University, and was admitted to the bar in 1874.. He was elected a justice of the District Court of Few York in 1893; and of the Municipal Court, second district, in 1899. It is not; cláimed that he was incompetent, nor could it well be, for his judgment was mature; he was’ well educated and possessed of sufficient, legal learning.

The charges were prosecuted by counsel for. the..petitioner with industry, energy and ability. The respondent was ably defended by counsel whose loyalty merits the commendation of the court... The parties had a fair, patient and exhaustive hearing before the* referee. The testimony covers 3,307 pages of typewriting. The* learned referee impartially and intelligently reviewed the evidence* in a report of 326 pages, giving the respondent the benefit of every reasonable doubt. His painstaking labors, carefully performed,, simplified the work of counsel and of the court. The case has-received the consideration and deliberation by the court that its importance to the public and its consequences to the respondent demand. The charges and specifications were clear and definite $ and, in view of the exhaustive analysis and discussion of the evidence by the learned referee, we do not deem it either necessary or' profitable to review the testimony in detail or at great length. We-will merely comment on the evidence briefly and state our conclusions upon its sufficiency to sustain the charges.

The second charge differs quite materially from the others, and will be considered first. It presents the question as to whether the* respondent-has ceased to be an “inhabitant” of the district, and, if' so, whether that is “cause” for removal. Section 1353 of the* revised Greater Hew York charter provides that a Municipal Court, justice shall be “a resident and elector” of the district for which hze shall be elected or appointed; that he shall not engage in any other business or profession, or hold any other public office, or act as a referee or receiver, but shall devote his entire time, so far as the public interest demands, to the performance of his official duties. The Public Officers Law (Laws o,f 1892, chap. 681, § 20)< provides that every office shall be “ vacant ” before the expiration of the term thereof upon the incumbent’s ceasing to be an “ inhabitant ” of the political subdivision of which he is required to-be a “ resident ” when elected or appointed. The respondent was-, eligible for the office when elected and when he qualified and entered upon the performance of his duties; but it is claimed that, he thereafter moved to White Plains, H. Y. His counsel contends-that this question can only be determined by a quo warranto proceeding. In overruling the respondent’s motion to dismiss this, charge, I think we have decided that he may be removed on this, ground, and I am of that opinion now. It is not entirely clear in these circumstances that the respondent, who was eligible and duly -elected and qualified, could be removed from the office by quo'warranto upon the ground that he subsequently ceased to be an inhab- ' itant of the district. (State v. Gardner, 43 Ala. 234; but see, also, People ex rel. Hodgkinson v. Stevens, 5 Hill, 616; State v. Wilson, 30 Kan. 661.) However that may be, I am of opinion that this court has authority, either exclusively of or concurrently with the remedy by quo warranto,, to remove the respondent upon this ground. The purpose of the statute was to require him to remain in the district where he had! been elected to the end that he could be readily found, at all reasonable hours, by those who had applications to make to him in his official -capacity and to avoid inconvenience to attorneys, litigants and witnesses occasioned by his voluntary absence or delays incident to transportation. By moving ■out of the district his constituents are deprived of this right and he is guilty of neglect of his duty to remain in the district where he would be accessible; Since he has taken up a residence at White Plains he arrives at the court house late mornings and ordinarily ■departs on an hour in the afternoon altogether too early for the proper performance of his duties and for the convenience of litigants and their attorneys and witnesses; In a sense, therefore, the charge is of the same nature as many of the others. The authority of the court to act is perhaps not upon the ground that the respondent is merely a; de facto officer, but because he has violated his statutory duty to remain an inhabitant of the district so long as he exercises the functions of his office, and in so doing has failed and neglected to properly perforin the duties of his office. The respondent, doubtless, did not intend to give up his residence in the district or to forfeit his office, but his intent is of little consequence in determining the question whether he has been guilty of neglect of duty or has ceased to be an inhabitant of the district, which has reference to his abode or domicile as distinguished from his legal residence. The evidence fairly warrants the inference that he became. an inhabitant of White Plains. He is not. merely sojourning there temporarily, but he has procured and taken up a permanent abode there. This charge is, therefore, fairly sustained, and while we might hesitate to remove the respondent upon it alone, yet it is important in connection with other charges which we also deem established.

The evidence also fairly sustains the 1st charge. In consequence of the respondent’s taking .up his abode in White Plains he was unable to transact any ex parte or other business until nine-thirty in the morning. Section 17 of the Municipal Court Act (Laws of 1902, chap, 580) provides that court shall be held by the justices of each district “at such hours in every judicial day or so often as the Board of Justices of the Municipal Court shall direct, and must continue in session so long as the public interest requires.” Rulés of the Municipal Court, enacted pursuant. to authority conferred by section 12 of the Municipal Court Act, prescribe that court shall be held “on Monday, Tuesday, Wednesday, Thursday and Friday of each week, except in those districts where the justice elected or appointed therein shall otherwise direct” and that “ court shall open at ten o’clock a. m.” These rules were first adopted pursuant to law in 1897 and were readopted on the 19th day of J une, 1902, after the passage of the Municipal Court Act. The rules thus enacted have the force of law and are binding upon the individual justices. (Matter of Moore, 108 N. Y. 280.) The respondent did not observe these rules. He opened and adjourned his court at hours that suited his own convenience, without regard to the inconvenience and expense to which others were thereby daily subjected. It was the rule rather than the exception that he did not open court at ten o’clock, and it was not an infrequent occurrence that he adjourned court early in the day when trials ready to be proceeded with were pending before him, and when he had a congested calendar requiring that trials be progressed as rapidly as possible. In that court there is always a large attendance of attorneys, litigants and witnesses. The law provides and their convenience requires that the court should be opened promptly at ten o’clock in the morning. This rule should be strictly observed. During several months in 1902 and 1903, while the respondent was living at White Plains, he ordinarily devoted Wednesdays to reading evidence, examining briefs and deciding cases, doing the work at his private office, 27o. 3 Chambers street. He, however, allowed actions and proceedings to be made returnable on and adjourned cases to those days, necessitating the attendance of great numbers of attorneys, litigants and witnesses. The respondent was not indolent. He worked hard and often held court on Saturday, when, under the rules, he was not obliged to do so, but he willfully disregarded the court rules and the rights, of litigants, their attorneys and witnesses concerning the days and hours for holding court.

The 4th charge alleges a violation of section 63 of the Code of Civil Procedure in permitting those not attorneys to practice in the Municipal Court. By virtue: of that section only attorneys and counselors of courts of record are permitted to practice in the Municipal Court of the city of Hew York, and a justice who knowingly permits a violation thereof is guilty of a misdemeanor. (Code Civ. Proc. § 64.) It. satisfactorily appears that one Max Levine,, not an attorney, as the respondent well knew, not only was permitted to practice in the respondent’s court for years as often as he liked,, which was quite frequently, but also after the specific objection had been taken that he was not an attorney and authorized to so practice. These facts are also important in connection with the charges of favoritism toward this same individual. The referee, in reaching the conclusion that the specification was not sustained, in so far as-it relates to the respondent’s permitting Isaac Brinn, not an attorney, to practice, was more considerate toward the respondent than the facts warranted. The evidence shows that the respondent, knowing Brinn not to be an attorney, permitted him to practice quite generally, the same as Levine.

Counsel for the petitioner agreed that the 5th charge, that the respondent permitted clerks whose certificates had not been filed to answer at the call of the calendar, is trivial, as reported by the referee. Without examining the -evidence or expressing an opinion thereon, this charge should, therefore, be dismissed.

The facts upon which' the 6th, 8th, 12th and 14th charges are based are of the same general nature, and are so interwoven that they will be considered together. They allege partiality, favoritism,, corruption and the abuse of judicial discretion in the conduct and decision of cases. The referee recommends that , they be all sustained except the specification of favoritism toward Max D. Steuer and Israel M. Lerner and that the favoritism was not habitually exercised except in favor of Aaron Morris. There is no evidence that the respondent received or accepted any pecuniary-benefit other than his salary for any of his official acts and we believe that he did not. We are, however, convinced by the evidence that Jie often allowed his friendships and prejudices to influence and at times to control his rulings and decisions. Judicial action and discretion were frequently arbitrarily exercised favorably to particular ■attorneys and suitors with no consideration of the claims or rights ■of the adverse party or opposing attorney. This abuse of judicial ■discretion was oppressive and the discontinuance or settlement of litigation was not infrequently coerced thereby. The official conduct of the respondent became a judicial scandal. In January, 1903, the East Side Civic Club employed an attorney to observe and investigate it. The attorney thus employed visited the court daily for & long period of time and presented accurate and valuable information with respect to the proceedings and especially concerning the respondent’s hours upon the bench. Abuses of judicial process in the respondent’s court by second-hand dealers in bringing actions and obtaining judgments, upon which hody executions issued, without personal service of process, was brought to the attention of the Italian consul, who, together with prominent Italian attorneys, presented the matter to the respondent. It also appears that attention was drawn by the public press to certain abuses in the respondent’s ■court. The conduct of the respondent cannot be excused for want of knowledge of the law or of his duty. His misconduct was deliberate and willful. In one instance, after a case had been twice tried and twice reversed on appeal and the law of the case had been settled against the party whom the respondent was favoring and after the parties had been required to attend upon the trial on almost" innumerable adjournments, the respondent stated from the bench that he was in a better position than the Appellate Term to ■determine the law of the case and openly declared that he could not .give a judgment for the party who was clearly entitled thereto under the decision of the Appellate Term; and arbitrarily and without authority and against objection transferred the case to another ■district. The favoritism of the respondent to particular attorneys nnd particular parties was manifested by repeated adjournments of ■cases against objection and without necessity or cause shown as required by the court rules, which it was his duty to observe, and refusing like favors to the adverse party; by arbitrarily controlling the action of the stenographer, whose duties are in all respects •similar to those of a Supreme Court stenographer, and refusing to allow objections or exceptions to be noted, in consequence of which an appeal would be, futile; by omitting evidence, objections and exceptions from returns on appeal; by granting, without authority, ex parte orders in actions pending in other districts; by making, on ex parte application or of his own motion, illegal entries and alterations in court records and papers; by adding-' causes to the calendar, in direct violation of a rule of the court binding upon himby asserting and exercising jurisdiction when it had been shown, on a traverse to the marshal’s return of service, that process had not been served; by refusing to grant judgments on verified complaints in default of verified answers; by assuming to dispose of cases, not upon the clear legal rights of the parties as presented, but upon his notions of equity; and by consulting privately with counsel or with parties on one side concerning the disposition of an application pending or to be made. Favoritism in the performance| of judicial duties constitutes corruption as disastrous in its consequence-as if the judicial officer received and was moved by a bribe. If the respondent was actuated by a. desire to favor his friends in matters resting in discretion, it is not at all unlikely that his. decisions were likewise influenced, although obviously that could only be shown by circumstances. The willful abuse of judicial discretion is the most oppressive and injurious kind of official misconduct. The parties prejudiced may obtain redress, on appeal from an illegal ruling or decision upon a question of law even though the judge acted corruptly and knew that his ruling or decision was wrong; but even for the extreme exercise of judicial discretion by an inferior court there is little or no redress to the litigant whose rights have been; violated or ignored for he has ne adequate remedy. The bias and prejudice of the respondent was. often manifested openly and was calculated to and did impair public confidence in his integrity and - fairness as a judicial officer. These-charges.are amply sustained by the evidence and they not only justify, but inevitably require the removal of the respondent.

The 7th charge alleges willful insubordination and it involves the attitude of the respondent towards the decisions of the appellate-courts and his refusal to follow them. Although the referee thinks the respondent should be exonerated on this charge, except in so far as it is embraced in the charges of favoritism, and it is not pressed. by counsel for petitioner, we are disinclined to pass, without notice,, the attitude of the petitioner towards the courts constituted by law to review his decisions. It at least deserves severe censure.

The 9th charge alleges that the respondent connived at the. bringing of actions in his court which belonged elsewhere. The referee deemed the evidence insufficient to sustain the charge. The practice of assigning claims so that actions may be brought in a particular district, for the convenience of the attorneys who are to have charge thereof, undoubtedly exists; but that alone does not invalidate the assignment of the cause of action. The practice ought not. to be encouraged, but the evidence does not connect the respondent, with any of the assignments and we are, therefore, also of opinion, that the charge should be dismissed.

The 10th charge alleges that the respondent corruptly refused to-allow actions to be removed to the City Court and to transfer-actions to other District Courts. In actions in the Municipal Court, with certain specified exceptions, where damages exceeding $250 are-demanded, the defendant at his election after issue joined and before-an adjournment upon his application, and upon giving an undertaking as therein provided, in an amount to be fixed by the court, not. exceeding twice the amount of the damages demanded, is entitled to an. order transferring the case to the City Court. (Revised Greater R. Y. Charter, § 1366; Municipal Court Act, § 3.) If an action is brought, in the Municipal Court in a district in which neither party resides it, must be transferred to the proper district if the defendant so demands, upon or before joinder of issue. (Revised Greater R. Y. Charter, § 1370; Municipal Court Act, § 25.) The referee has sustained, three of the specifications under this charge. Qne relates to the-respondent’s refusal to allow a case to be removed to the City Court and the other two relate to his refusal to transfer cases to other District Courts. Counsel for petitioner cites evidence tending to-support other specifications not sustained by the referee. The-evidence fairly sustains one specification relating to a refusal toalldw a removal and another relating to a refusal to allow a transfer. Standing alone we would hesitate to hold this charge sufficient to require the removal of the respondent, but the evidence adduced, thereunder indicates that his judicial action was the result of favoritism and we think it highly probable that the respondent was influ-enced to retain the cases in his court hy friendship for the party or ¡attorney, opposing the removal or transfer.

The 11th charge relates to placing cases upon the calendar where the return of. service of process had not been made within the time prescribed therefor.. Rule 4 of the Municipal Cotirt Rules, •duly adopted and binding, provides that to entitle a case to go . upon the calendar the summons must be returned to the clerk’s office the -day before it is returnable. This is an eminently proper rule and is calculated to facilitate the- timely making 'of a calendar for the -convenience of the parties: and their attorneys. It is evident, in view of this rule, that if the return of service be not filed in time the defendant would be justified in assuming that the case had been withdrawn or discontinued. At any rate the rule was binding on the respondent and he did not observe it. ..He not only added cases do the calendar in violation of the rule but added cases to the calen•dar after the return hour of the summonses had expired and the regular calendar had been called; and did this on one occasion ¡against the objection of the attorney for the defendant who happened "to be in court, and on another occasion without any appearance for 4lie defendant. The respondent frankly admits that he suspends "this rule whenever he deems it proper. Some, if not all, of these acts -of misconduct were committed for the purpose of favoring his friends.

The 13th charge alleges the withholding of decisions on motions .¡and the reception of papers ex parte. It is not sustained by the ref■eree, is not urged by counsel for petitioner, and should be dismissed

The 15th charge alleges deportnient unbecoming a justice of the Municipal Court,. The 18th also relates to his deportment ¡and the effect upon spectators and on the community. These two -charges may, therefore, be properly considered together. The referee recommends that they both be sustained and we are of opinion that they are fairly supported by the evidence. The respond-ent while on the bench publicly exercising judicial functions has at times been guilty of conduct and given public utterance to sentiments, not only highly undignified but showing prejudice against •classes of attorneys and litigants on account of their nationality, -and also a determination to conduct judicial proceedings arbitrarily, ■and despotically and willfully refusing .to accord to parties or their attorneys their clear constitutional and statutory rights. If these •charges and the evidence adduced thereunder stood alone we might, in view of the volume of business pending before the respondent And the trial upon his patience incident to calendar calls, the Adjournment of causes and the impertinence at times of attorneys, ■deem it sufficient to express condemnation and reprimand the respondent without removing him. The demeanor of the respond-, ■ent on the bench has occasionally, at least, been domineering and tyrannical. He has been disrespectful and abusive to members of the bar without cause. His conduct in this regard was not merely the manifestations of temper which might be excused for cause, but the only provocation was opposition to the desires of his friends with reference to the conduct or disposition of their cases.

The 1.6th charge and specifications thereunder allege acts of ■oppression in granting illegal ex pa/rte orders in actions pending in ■other District Courts. Rule 15 of the Municipal Court Rules provides that ex pa/rte applications may be made to any justice. This rule only authorizes applications in actions pending in one district to •A justice of another district for such orders as may be granted by a justice as distinguished from the court. It is not authority for such applications when the order may only be granted by the ■court. The court in each district is separate and distinct from the oourt in each other district, and it is manifest that there should be no interference by one judge with matters pertaining to the court in another district. The only authority for ordering the exhibition ■of a writing or account declared on in an action in the Municipal Court is contained in section 165 of the Municipal Court Act, and it is conferred upon the court and not upon a'justice. It does not authorize the examination- of books as by a bill of discovery. That is not within the jurisdiction of the Municipal Court. The extension of the practice in the courts of record to the Municipal Court, by section 20 of the Municipal Court Act, was merely intended to regulate the practice in matters over which the Municipal Court has jurisdiction. The order granted ex parte by the respondent in an ■action pending in another district requiring the plaintiff to deliver his books at the office of the defendants, a firm of attorneys — to •one of whom respondent had previously shown favoritism—for inspection, being an order that could only be. granted by the court, was wholly unauthorized. Section 253 of the Municipal Court Act authorizes the opening of defaults or omissions on such notice as the court may direct, which clearly contemplates an order by the court in which the default was taken. , Rule 15 provides that, such motions-may be brought on, on three days’ notice. Within a few minutes after default was taken in another district, the respondent at the instance ex parte of Levine — the party whom he allowed to practice-without a license—'issued an order to show cause why a default-taken in another district should not be opened returnable in the proper district, but in seven days, and staying proceedings on the judgment in the meantime. The order was served within twenty minutes of the time the default was taken. The day before the time expired the respondent, ex parte on the same affidavits, extended the stay and the return day of the order another week. In another case, ■ the plaintiff and his attorney were favorites of the respondent, and he had issued an order of arrest against the defendant oh a judgment by default. The summons was: not in fact served, although there-was a claim of service. Extortion Was practiced upon the defendant in the meantime, but without respondent’s knowledge. Respondent was no longer holding court in that district. A motion to-vacate the order of arrest on the ground of fraud and lack of jurisdiction was made returnable before the court in the district then presided overby another justice* ■ The respondent, before the order was returnable, but on the same morning, on the ex pa/rte application of plaintiff’s attorney, marked the judgment satisfied. If this-flagrant usurpation of authority had not been for the benefit of thepai-ties toward whom the respondent -was shown to have exercised favoritism on many other occasions, it might be excused on the.theory that the evidence is susceptible of an innocent construction and that the respondent may have believed that he was authorized-, to do these things. The evidence,, however, is convincing that he-knew that lie was exceeding his authority, that he was moved by a desire to favor his friends and was blind to the rights of their adversaries.

The 17th charge alleges that the respondent, actuated by desire; to favor certain plaintiffs, granted judgments and body executions-without due service of process and contrary to law. The referee-reports, and we find, that the evidence fairly sustains this charge in. two instances only. In these cases, also, were it not for the favoritism shown the plaintiffs previously, we might exonerate the respondent on the ground of mistake in interpreting the law, but his desire to favor them was so great that he acted arbitrarily and recklessly. If he had been impartial it is impossible to believe that he would not have exercised greater care in taking defaults on causes of action where body executions could be issued, and have been more considerate on applications to open such defaults. He now says that he knew, ahd his training and legal education should have informed him, that he had no jurisdiction to enter a judgment against a party without personal service of process, and yet he had no patience with parties traversing a return of personal service and showing a service upon some other member of the household; and openly declared that it was not essential that personal service be made if the party for whom process was intended ascertained that it had been served upon another. The claim is made, and the evidence indicated that it is not improbable, that an infamous practice exists on the part of some second-hand dealers who sell property on installments to bring actions charging fraud and obtain judgments by default without personal service of the summons and then issue body executions and thus coerce settlement, even though the defendant may have had a defense. When a claim of the kind was presented to the respondent, as many were, it was entitled to prompt, thorough and impartial consideration and investigation which it did not receive.

We,, therefore, find all the charges sustained upon one or more specifications, except the 3d, 5th, 7th, 9th and 13th. We are convinced that the respondent has not the proper judicial temperament, nor has he a proper appreciation of the rights of litigants to have a fair and impartial hearing. The interests of the public forbid that his official misconduct be condoned, and require his removal.

It follows that the respondent should be adjudged guilty of the charges as stated and should be removed from the office of justice of the Municipal Court, second district, borough of Manhattan, Hew York.

O’Brien, Ingraham, McLaughlin and Hatch, JJ., concurred.

Application granted.