193 Wis. 602 | Wis. | 1927
Lead Opinion
The following opinion was filed June 20, 1927:
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
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,
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
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
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
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
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.
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.
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
“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
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
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,
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
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
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:
Dissenting Opinion
(difsfnting). I agree with 'the conclusion embodied in respondent’s admission and the majority’s opinion that respondent’s conduct was improper and reprehensible and have nothing to say in palliation.
The head and front of respondent’s offense is something he did while holding a judicial position. The loans he made are declared tainted because so made. The judicial office he held was one of legislative creation, and attached to it, at its birth, were express legislative provisions for his removal or punishment for any derelictions as such judicial officer. He held such office and performed its duties, by virtue of and only through such legislative action and the vote of the people. That court being a creature of the legislature, that body has plenary power over it. State ex rel. Martin v. Kalb, 50 Wis. 178, 188, 6 N. W. 557. He did not acquire or hold it as an officer of the courts, as attorneys as such are declared to be. Hepp v. Petrie, 185 Wis. 350, 358, 200 N. W. 857. The distinction
The distinction here presented between respondent as a judicial officer and respondent as an attorney at law, who, as an officer of this court, is therefore amenable directly to it, is more sharply defined and outstanding than is the distinction recognized at common law and up to the present time between the dual functions of the same individual when a judge at chambers and when on the bench as a court. In re Remington, 7 Wis. 643, 655; In re Kindling, 39 Wis. 35, 59; Wisconsin Industrial School v. Clark County, 103 Wis. 651, 663, 79 N. W. 422; State ex rel. Hazelton v. Turner, 168 Wis. 170, 174, 169 N. W. 304.
For these reasons I think that this court, even conceding that under its supervisory powers or otherwise it might have had jurisdiction, yet that it ought not to have proceeded, and that respondent’s plea to the jurisdiction should have been sustained.
I cannot agree with the majority as to the sentence pronounced. I think it is too severe and harsh.
Having read the body of as well as the signatures attached to that which is designated as a petition, signed by sixty members of the Dane county bar and which is swept from
A motion for a rehearing was denied, without costs, on October 11, 1927.
The following opinion was filed November 8, 1927:
In the opinion in this case reference was made to a brief amici enrice presented to this court by sixty members of the Dane county bar. This brief was treated as a petition to the court. The effort thus to influence the court was disapproved. Filing of the brief was denied. Thirty-one of the original signers now petition the court to reconsider what was thus said with reference to that matter.
In our original treatment of the subject our only doubt was whether we should consider the brief as a petition. Having arrived at the conclusion that the brief was no more
We cannot doubt that these contentions are sincere. If it be true, as appears to be believed by a considerable number of the bar, that a court may thus properly be approached, we think that the question may well be re-examined, for the purpose of promoting an understanding between the court and the bar and a continuance of that confidence and respect which should characterize their relations. In this spirit we-cheerfully undertake to review the considerations which, it appears to us, make the conclusion announced in the main opinion imperative.
First, we should have in mind a thorough understanding of the status of the proceedings in which the petition was filed. The jurisdiction of this court had been aroused by a petition presented to this court signed by the officers of the Dane County Bar Association calling attention to certain practices indulged by Judge Ole A. Stolen which reflected upon his- right to continue as a member of the bar of this court. The court received the petition, considered the matters therein set forth, and concluded that the facts presented called for an investigation. An answer to the petition was required, which answer raised questions of fact. The issues thus raised were referred to a referee for the purpose of taking testimony. Hearings had been had before the referee, evidence had been taken and reported to
It will thus be seen that the matters pending before the court for adjudication were questions of fact presented by the evidence contained in the report of the referee. Questions of fact were to be determined and a legal conclusion upon such facts to be announced. The brief amici curies filed by the sixty members of the Dane county bar did not pretend to be of assistance to the court in either the matter of analyzing or weighing the evidence or in arriving at proper legal conclusions therefrom.
In the present application the document then presented is analyzed, and it is stated that “we requested permission to submit, in behalf of the respondent, the following: 1. That the practice of filing such a petition was permissible under certain decisions which were cited. 2. That in our dealings with Mr. Stolen, as a judge, we found him honest and honorable. 3. That we believed the indiscreet conduct of which he was guilty resulted from his financial situation. 4. That disbarment should only follow for gross misconduct. 5. That resignation by Mr. Stolen as judge, his financial condition, and the publicity given his acts constituted a severe punishment to him and-warning to others. 6. That, because of the difficulty he would have in supporting himself and family and meeting his obligations if disbarred, he be not prevented from resuming his practice.” It will thus be seen that the document presented was a sentimental appeal to the court in favor of Mr. Stolen.
It is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law, should be immune from every extraneous influence; that facts should be decided upon evidence produced in court,
In the early jurisprudence of England, juries were kept together from the beginning to the end of all trials, whether civil or criminal, for the purpose of protecting their decisions from all improper influences. This practice was departed from only when a trial lasting for thirteen hours made it impossible to keep them together any longer, Lord Kenyon observing that necessity justified what it compelled, and that though it was left to modern times to bring forth cases of such extraordinary length, no rule could compel them to continue sitting longer than their natural powers would endure. La Valley v. State, 188 Wis. 68, 205 N. W. 412. This early practice as to juries came from the inherent belief of all members of society that litigants in court were entitled to have their cases determined upon the law as it existed and the facts as sworn to in court. That belief has obtained growing conviction to the present day. While it is now impracticable to keep juries together throughout the course of every trial, the practice prevails even now in capital offenses. Although necessities of the times compelled a relaxation of the rules early adopted for the preservation of the jury from extraneous influences, it is still expected that judges, with their great appreciation of the proprieties and responsibilities of their position, will neither permit nor tolerate the intrusion of considerations calculated to influence the conduct of men and the determination of matters pending before them for judicial decision. In obedience to this recognized rule of propriety, men of sensibilities and culture, especially members of the bar, are discreet in discussing the merits of pending litigation in the presence of judges before whom such litigation is pending. It is unnecessary to dwell longer upon this phase of the discussion. The assertions here made are universally accepted as proper standards of ethics.
“The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It ‘derives its source,’ to use the language of Mr. Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 211, ‘from those laws whose authority is acknowledged by civilized men throughout the world.’ It is found wherever civilization exists. It was not, therefore, a right granted to the people by the constitution. The government of the United States when established found it in existence, with the obligation on the part of the states to afford it protection.”
The right of petition may be conceded to be an inherent right of the citizen under all free governments. This right has existed side by side with that standard of conduct set up and observed by the judgment of civilized peoples that courts shall decide causes only upon sworn testimony produced in court, to which shall be applied principles of law applicable to the situation. The right of petition, natural and inherent though it be, has never, so far as we can discover, been invoked to shatter the standards of propriety entertained for the conduct of courts. Throughout many centuries the right of petition has been recognized, but it
“Petitions to the Crown appear to have been at first for the redress of private and local grievances, or for remedies which the courts of law could not grant. As equity grew into a system, petitions of this kind not seeking legislative remedies tended to become superseded by bills in chancery.”
Thus far our discussion has related to petitions as popularly understood. There is a class of petitions which may properly be addressed to courts. They are petitions which conform to the ordinary course of judicial procedure and serve to arouse the jurisdiction or action of the court upon justiciable matters. This very proceeding was instituted by a petition signed by the officers of the Dane County Bar Association. That petition aroused the jurisdiction, or action at least, of this court in the premises. Petitions which have been established as a part of judicial procedure may be presented to courts, and such petitions are the only ones protected by the constitutional provision here invoked.
It is further said that the petition was not intended to influence the court upon a decision of the matter pending before it, but that it was rather an appeal for clemency, an appeal for mercy, an appeal to the pardoning power which the court, and only the court, might exercise in the premises. It was an appeal calculated to arouse the sympathies of the
Perhaps the correctness of. our conclusion may be further emphasized by the suggestion that if it were permissible for the friends of Judge Stolen to thus importune the court, it were equally permissible for his enemies to do so. Judge Stolen was deeply interested in the proceedings. He had rights which should be protected. He had a right to have his case determined upon the evidence produced. His case should not have been prejudiced by representations in the way of petitions bringing matters to the attention of the court not placed before it in sworn testimony. If he could not be thus prejudiced it would seem to follow as a necessary conclusion that he could not be thus assisted.
Before closing our discussion on this subject, it may be well to refer to the fact that the constitution guarantees liberty of speech as well as liberty of petition. While there
Petitioners rely for approval of their conduct upon In re Stephens, 84 Cal. 77, 24 Pac. 46, and In re Enright, 69 Vt. 317, 37 Atl. 1046. In each of these cases an attorney had been disbarred. In each of the cases, after a judgment of disbarment had been entered, a petition was presented, signed by members of the bar, praying for a modification of the judgment of disbarment. In each of the cases the petition was received by the court and acted upon. In those cases, however, the court had acted upon the facts and pronounced its judgment. Having the power to modify its judgment, which power perhaps may be compared to the pardoning power, members of the bar petitioned for a commutation of sentence, so to speak. Those cases do not stand as a precedent for the petition here presented. Those petitions were addressed to the discretionary power of the court. They were not calculated to influence the court in the weighing of evidence, in the determination of facts, and in the application of the law. While we still must hold that the petition was untimely and improper, in view of the apparent belief of those presenting it that they were within their rights, we feel that the characterization of their conduct as “reprehensible” was unnecessarily harsh, and take this occasion to withdraw it, leaving it to the reader to supply his own characterization.