Johnson v. Johnson

1967 OK 16, 424 P.2d 414

• Court: Supreme Court of Oklahoma
• Decided: January 19, 1967
• Docket: 35937
• Status: Published

Opinions

HORACE D. BALLAINE, Special-Justice.

This case is an outgrowth of the recent public disclosure that Nelson S. Corn, a former member of this Court, had by his own admission been guilty of taking bribes in certain cases since some time early in his first term of office, which commenced in 1935. The question we are now called on to decide is the effect of Corn’s participation, during the years when his corruption was undiscovered, in decisions of this Court in which there is no allegation or evidence that he acted corruptly. I11 short, the question is whether every decision in which he cast the deciding vote during such period should now be set aside, or whether only those decisions in which there is evidence that he acted corruptly should be set aside.

The opinion sought to be vacated here was handed down in October of 1954, and is reported as Johnson v. Johnson, Okl., 279 P.2d 928. The opinion was adopted by the vote of five Justices, among whom was Justice Corn. The decision reversed the order of the trial court and ordered a certain instrument admitted to probate as the last will of Dexter G. Johnson, deceased. Upon issuance of the mandate, the estate of Dexter G. Johnson was distributed by the County Court in accordance with the terms of the instrument admitted to probate as his Last Will and Testament. There the ■matter rested until August 10, 1965, when a petition to vacate the opinion of October, 1954, was filed by Victor H. Johnson, Executor of the Estate of Joseph E. Johnson, the original defendant in error, who is now dead. In this opinion Victor H. Johnson will be referred to as Petitioner, and Beulah J. Johnson, one of the original plaintiffs in error and successor to the interest of her deceased brother, Victor C. Johnson, the other original plaintiff in error, will be referred to as Respondent.

The petition to vacate the former opinion is based generally upon the recent disclosures and happenings relating to the dishonesty of Justice Corn and others. These matters, some of which are contained in the stipulation hereafter referred to and some of which we judicially notice and recite here for the sake of fairness and clarity, are as follows':

Nelson S. Corn was first elected to this Court in 1934 and served continuously until January of 1959. He then became a supernumerary justice until his resignation in July of 1964. At that time he entered a plea of nolo contendere to a federal charge of filing false income tax returns and was sentenced upon such plea. On December 9, 1964, while serving his sentence, he made a statement under oath setting out the details of his dishonesty. From this statement, and from other evidence before us, it appears that during his first term of office he made a bargain with an Oklahoma City attorney that in return for payment of campaign expenses he would vote as the attorney directed “as a sixth man” in any case where there were already five votes in favor of an opinion. The attorney created a campaign fund for him and gave him money from time to time after Corn had voted as he directed. In later years, it is apparent, the agreement to vote only in cases where a majority was already in favor of the opinion was disregarded and Corn voted as the attorney desired in any case where he was requested to do so. Corn also stated that in certain cases (arising after the decision in this case in 1954) he had received large bribes for favorable opinions and that he had given part of a bribe to two former justices of this Court, one of whom has now been impeached, and the other of whom has resigned both from his office and from the Bar.

Upon disclosure of the above matters the Oklahoma Bar Association created an investigating committee (to which this Court gave broad powers of subpoena and compulsory attendance of witnesses) for the purpose of determining whether further corruption existed on this Court. The Committee was assisted by a committee of laymen appointed by the Governor. Each individual justice of this Court waived any immunity he might have had and testified before the committee. Those of us who are special justices in this case feel that in fairness to all the justices now on this Court it should be said that after exhaustive hearings in which all evidence which any citizen desired to present was heard, and in which complete property and financial records and tax returns of all concerned were examined, the committee completely exonerated all the justices now on this Court from any suspicion of wrongdoing. The Bar committee reported that each of the present justices was honest and had been guilty of no wrongdoing. The Governor’s citizens’ committee said that “not one iota of suspicion” had been cast upon them. See the final reports of these committees contained in 36 Okla.B.A.J., at pages 601 and 704 (1965).

All of the above recitations are matters of public record and there is little need to dwell on further details here. It is sufficient to say that the members of this Court were as appalled by the revelations of the dishonesty which had taken place as was the public at large.

In his petition to vacate the opinion and judgment in this case, Petitioner originally requested the appointment of a referee, with power of subpoena, to hear evidence. •• However, before any action was taken upon such request the parties to this proceeding apparently decided that they first wanted a decision of this Court upon the purely legal question of whether or not the decision here involved was void as a matter of law (regardless of whether any wrongdoing in its procurement existed or did not exist) either because:

a) Corn had, before participating in this case, forfeited his office and become disqualified to hold future office by taking bribes in other cases, or because

b) Corn was disqualified to participate in this case by reason of his continuing agreement with the Oklahoma City attorney and by reason of his having taken bribes from him.¹

To procure a decision upon this question the parties entered into a stipulation, the pertinent parts of which, so far as this case is concerned, are as follows:

“1. The sole issue of the Petition to Vacate filed herein, subject to the reservations set forth in Paragraph 8 is whether N. S. Corn was a member of the Supreme Court of Oklahoma in 1953 and 1954 and entitled to participate in the decision in the case of Johnson et al. vs. Johnson, reported in 279 P.2d 928. For the purpose of this stipulation there is no contention that there was any bribery in said case. The respective contentions of Petitioner and Respondent are set forth in Paragraphs 5 and 6.

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“4. Neither the Petitioner nor the Respondent nor the public generally knew of the alleged 'arrangement’ between N. S. Corn and * * * (the Oklahoma City attorney) as set forth in said statements until about the date of the first statement.

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“7. Petitioner and Respondent agree that if the issue set forth in paragraph 1 hereof is decided in favor of Respondent, the Petition to Vacate should be dismissed. However, Petitioner and Respondent disagree as to the consequences of the decision of said issue in favor of the Petitioner, and subject to the Court’s approval that question is postponed.

“8. The foregoing stipulation is submitted to the Court as the basis for a decision on Petitioner’s Petition to Vacate herein. It is submitted without prejudice to any other grounds for the vacation of said judgment which may or could develop hereafter, and Respondent shall be entitled to assert any and all defenses against any subsequent effort to vacate said judgment.”

To make certain that the parties intended to stipulate that there was no wrongdoing of any kind in this case, we asked them upon oral argument whether the stipulation that there was no “bribery” in this case including wrongdoing of all kinds and each side replied affirmatively.

We proceed then to decide the issue tendered by the stipulation. The issue, as we view it is: Where a judge secretly agrees to take bribes from an individual and does take them consistently, but such fact is unknown except to him and the bribe giver, does he thereby automatically forfeit his office, or automatically become disqualified to participate in any further decision of the Court, so that his every vote thereafter is a nullity, even in cases where no wrongdoing occurred?

Our answer is in the negative. In reaching this conclusion we have been guided not only by our views of the statutes, constitutional provisions and decided cases, but also by our views as to the public harm which would ensue were our decision otherwise.

It is apparent that if our holding were in the affirmative every decision from 1938² to January of 1959 in which Corn cast the deciding vote would have to be set aside. There are more than one thousand such cases. Rights of every kind have been settled by the decisions in such cases. Marriages have been contracted upon the basis of divorces granted, titles have been transferred and judgments paid. To now go back and reopen every such case for a possible new decision requiring new arguments and new hearings would cast intolerable and unjust burdens upon all the parties. Titles and status long thought put at rest would be thrown open to doubt. It would indeed create a “shambles” as Respondent contends. And this would be so in every case in which Corn cast the deciding vote even though no corruption occurred in such case.

To us this result seems unthinkable and contrary to the most elementary principles of justice. We think it more just that those cases in which no corruption can be found should be allowed to stand, at the same time giving full right to any person who believes that any such decision has been corruptly obtained, to petition this Court for a hearing, in which, if corruption can be shown, the decision may be set aside.

We do not, however, rest our decision upon such considerations alone. In our opinion the statutes or constitutional provisions relied on by Petitioner do not provide for an automatic forfeiture of office in the absence of judicial determination that grounds exist therefor nor do they provide for disqualification to hear a case in the absence of prejudice, wrongdoing or interest in the particular case heard.

To sustain his contention that Corn automatically forfeited his office when he took his first bribe in 1938, and that he was ineligible to hold office thereafter, Petitioner relies upon 21 O.S.1961, § 382, which reads:

“Every' executive, legislative, county, municipal, judicial or other public officer, or any person assuming to act as such ‘ officer, who corruptly accepts or requests a gift or gratuity, or a promise to make a gift, or a promise to do an act beneficial to such officer, or that judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity, or as a consideration for any speech, work or service in connection therewith, or that in such capacity he shall make any particular nomination or appointment, shall forfeit his office, be forever disqualified to hold any public office, trust or appointment under the laws of this State, and be punished by imprisonment in the State penitentiary not exceeding ten years, or by fine not exceeding five thousand dollars and imprisonment in jail not exceeding one year.”

It will be noted that this statute provides that public officers who violate its terms shall forfeit their office, be disqualified to hold public office and “be punished” by fine and imprisonment or both. Petitioner contends that under this wording the forfeiture and disqualification provisions of the statute come into play automatically upon a violation of the statute without the necessity of a conviction. He argues, therefore, that Corn forfeited his office and became disqualified to hold further office at the time he took his first bribe, even in the absence of a conviction for such offense, and even though his crime was known to no one but himself and his bribe giver.

Respondent, on the other hand, argues that the statute is a criminal one and that none of the penalties provided therein occur or may be imposed until a conviction in a criminal proceeding is had.

For the purposes of this case it is not necessary that we decide whether the statute requires conviction in a criminal proceeding, where guilt would have to be proved beyond a reasonable doubt, before forfeiture of office and disqualification to hold office would occur. It may well be that under the wording of the statute a formal adjudication of guilt in a civil proceeding where the officer was afforded the safeguards required by due process, would be all that would be required to remove him from office, and that conviction in a criminal proceeding would be necessary only to impose the “punishments” of fine and imprisonment. On the other hand, it may also well be that Respondent is correct and that none of the penalties prescribed by the statute occur or may be imposed until a conviction in a criminal proceeding has been had. We leave such question for determination when the necessity therefor arises.

We think it plain that in any event the statute requires at least a formal adjudication of the officer’s guilt in some regular proceeding with formal allegations of his misdeeds, due proof thereof and full opportunity to defend. We are not willing to hold that the Legislature intended so drastic a result, without adjudicative proceedings of some kind adequate to protect the officer’s legitimate interests.

Respondent also contends that such statute is not applicable to a justice of the Supreme Court in any event since under Sections 1 and 2 of Article VIII of our Constitution, Justices of the Supreme Court are subject to impeachment and, under Section 2 of such article it is only officers “not liable to impeachment” who “shall be subject to removal from office in such manner and for such causes as may be provided by law.” There is a body of law in other states construing similar constitutional provisions and holding that where impeachment is constitutionally provided" as the method of removal of named officers, the Legislature may not constitutionally provide for removal by other means. See e. g. Conroy v. Hallowell, 94 Neb. 794, 144 N.W. 895 (1913) and 43 Am.Jur. Public Officers § 182.

We do not reach such question here, however, since, as we have said, we think it plain that 21 O.S.1961, § 382 requires at least a formal adjudication of guilt in a proceeding where due process is afforded, and may even require conviction in a criminal proceeding. Since no proceeding of either character was ever had, there was no forfeiture of office or disqualification to hold future office under the statute.

Petitioners’ cases relating to quo warranto and other special proceedings are not in point here. In none of such cases is there a holding that a guilty officer automatically forfeited his office without a hearing, and so far as we can determine there are no such cases reported anywhere.

We turn next to the question of whether Corn was disqualified from participating in decisions of this Court (even though he was not disqualified to hold office) because of his having taken bribes in prior cases and because of his continuing corrupt agreement with the Oklahoma City attorney.

It is urged that his disqualification arises by reason of Section 6 of Article II of our Constitution, which provides:

“The courts of justice of the State shall be open to every person, and speedy and certain remedy be afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice.”

It is argued that even if Corn held his office legally, and even if he was guilty of no wrongdoing in this case, his continuing agreement with the Oklahoma City attorney was of so corrupt a nature that under the above quoted Constitutional provision he was disqualified to participate in any case whatever, and that such disqualification existed although known to no one but him and the Oklahoma City attorney.

We do not so read the Constitutional provision. It provides that a remedy shall be provided for every wrong and every injury and that right and justice shall be administered “without sale, denial, delay or prejudice”. We believe that such provisions apply separately to each individual case. If a decision is rendered in a particular case without sale, denial, prejudice or wrongdoing of any kind, then, even though the decision be participated in by a judge who has been corrupt in other cases, we think the requirements of the provision have been met. In this case the parties have stipulated (for the purpose of the resolution of the question we are now deciding) that there was no wrongdoing in this case. It follows- that under the issues herein presented by the stipulation the Constitutional provision was not • violated.

It is true that under the above Constitutional provision we have held that where a judge-is apparently prejudiced against a party or his conduct has been such. that a party is afraid to try his case 'before him, such judge, upon application, will be required to disqualify in that particular case. The reasoning in these cases is that no one should be required to try a case before a judge who, because of particular circumstances, he has reason to believe will not give him a fair trial. To force a trial before the judge under such circumstances would, of course, undermine confidence in the judicial process.

But these cases, and cases of like tenor, are a far cry from the ruling sought here. Here a ruling is sought that because Corn entered into a corrupt bargain with the Oklahoma City attorney every case in which he cast the deciding vote while such agreement continued must now be set aside, even though such agreement had no bearing on his vote and regardless of whether the case was fairly decided. It may be true that if litigants had known of Corn’s bargain they would not have wanted him to sit in judgment in their cases, but we do not believe that such fact alone, having now come to light, is sufficient to justify the setting aside of every case in which he cast a deciding vote in the absence of evidence that his corrupt bargain influenced such decision, nor do we believe that Section 6 of Article II of our Constitution requires any such result.

It has also been suggested that if we held that Corn was disqualified to participate in any decision while his bargain remained in effect the harshness of the result might be tempered by adopting the rule prevalent in the cases pertaining to defacto officers. The result of adopting such rule would be to make the decisions in which he cast the deciding vote prima facie void, but sustainable if the party receiving the benefit of the judgment could prove that the party obtaining the judgment was guilty of no wrongdoing. We think it would be unjust and unwise to place such a burden upon those claiming the benefits of the judgments. As we have said, there are more than one thousand such judgments dating back as far as twenty-six years. Many participants in such cases are now deceased. In the intervening years the parties have scattered, papers have been lost, and even to recall the particulars of the case would in many cases be difficult. We believe justice will be better served by adhering to the estbalished rules and limiting the- vacation of our judgments to those cases where there is at least some evidence that wrongdoing influenced the decision.

It should be said here that we have no doubt of our jurisdiction or power to grant relief in any case where corruption can be shown to have influenced a decision of this Court. We have inherent equitable power to protect the integrity of our judgments and this power includes the power to conduct inquiries as to whether any judgment has been obtained by corrupt means. Root Refining Co. v. Universal Oil Products Co., 3 Cir., 169 F.2d 514. The only limitation upon our power is that in the investigation, once it is commenced, the rights of the parties to be affected must be safeguarded by the practices ordinarily observed in adversai'y proceedings. Universal Oil Products Company v. Root Refining Company, 328 U.S. 575, 66 S.Ct. 1176, 90 L.Ed. 1447. See also generally Restatement of the Law, Judgments, Section 124.

It should be noted that our decision here goes no further than the narrow issue submitted by the stipulation. All that we hold, or mean to hold, is that Corn did not automatically forfeit his office, automatically become disqualified to hold office, or automatically become disqualified to sit in every case arising after his corrupt bargain with the Oklahoma City Attorney.

This Court is, and will be, open to any litigant who can come forward with evidence that any decision was obtained by corruption of any kind.

Neither do we mean to indicate whether the facts in this case, in the absence of the stipulation, are or are not sufficient, with or without further evidence, to set the questioned decision aside.

Under the stipulation the present petition must be dismissed. Nothing herein, however, is to be taken as prohibiting its refiling.

IRWIN, C. J., PIODGES, V. C. J., LAVENDER and BERRY, JJ., and LEE R. WEST and ROBERT HARBISON, Special Justices, concur. MAURICE MERRILL, Special Justice, concurring specially in results. SAMUEL T. ALLEN, Special Justice, concurring in results. HALLEY, C. J., JACKSON, V. C. J., and DAVISON, WILLIAMS and BLACKBIRD, JJ., having certified their disqualification in this case, Honorable HORACE D. BALLAINE, Tulsa, Oklahoma, Honorable ROBERT HARBISON, Altus, Oklahoma, Honorable LEE R. WEST, Ada, Oklahoma, Honorable MAURICE MERRILL, Norman, Oklahoma, and Honorable SAMUEL T. ALLEN, Sapulpa, Oklahoma, were appointed Special Justices in their stead.

1 . Petitioner contends that if Corn had either forfeited his office or become disqualified, then the decision was void because it was not concurred in by a majority of the Supreme Court as required by Section 3 of Article VII of the Oklahoma Constitution.

2 . The year 1038 is assumed.- Corn’s statement to the Federal authorities was that his bargain with the attorney was probably made in 1038, but in other testimony he said it was in 1936.