11 Colo. 259 | Colo. | 1888
The respondent in this case is judge of the district court of the fifth judicial district, having been elected to that office in November, 1882, and having qualified and entered upon the duties thereof about the 7th day of January, 1883. This petition as originally filed contained nineteen specifications;-but all save the first five were stricken out on motion, for the reason that they related wholly to judicial acts of the respondent which are not cognizable in a proceeding of this character, its object being the investigation of charges of professional-misconduct alleged to have been committed by
In respect to the second, third and fourth specifications, we are of opinion, upon a full consideration of all the evidence produced in their support, as well as the evidence produced in behalf of the respondent, that these charges are not sufficiently proven, and shall therefore not notice them further.
Concerning the charge that respondent entered into a contract with J. H. Plater, whereby, for a valuable consideration, he agreed to appoint Plater clerk of said district court, the testimony produced by the respective parties is greatly in conflict. The circumstances attending the alleged loan of money made by White to Plater for the use of the respondent, as the same are disclosed by the evidence, give to this transaction a suspicious appearance. In view, however, of the positive testimony of both respondent and Plater, that it was merely a loan of money effected for the respondent, and that Plater’s only connection therewith was as surety for the respondent, the charge that the transaction includes a sale of the clerk’s office to Plater seems to be unwarranted.
The remaining specification to be considered is to the effect that respondent, on or about November 1, 1882, made and entered into a contract of the character above d'escxibed with orxe Johxx Marshall, axi elector of said Lake
It further appears that, about 5 o’clock in the afternoon of election day, Marshall handed a roll of money, containing $300, to Parsons, with a request to deliver it to the respondent; that respondent refused at first to receive it, but, acting upon the suggestion of Parsons that Marshall still had it in his power to injure him, concluded to receive it, and hold it until the votes were counted. There is testimony that respondent offered to return the money to Marshall the next day after the election, but that the latter, learning that his appointment as clerk, if insisted upon, would be merely nominal, refused to accept a return of the money at that time. It seems, however, from the testimony, that the matter was compromised about a year afterwards, and the money returned, but that Marshall never was appointed clerk of. said district court.
We are free to say that the respondent’s explanation of the foregoing transaction is very unsatisfactory, and while it perhaps mitigates the wrong, in our judgment neither justifies nor excuses his conduct. The theory of the defense is that Marshall’s support was not desired by the respondent, but fearing, as he claims, from the latter’s well-known reputation as a politician, that some fraudulent manipulation of the ballot-boxes might occur if he were not conciliated in some manner, which might result in the defeat of the respondent, and perhaps also the defeat of his friends (the witnesses Parsons and Kellogg), the contract above set out was executed and deposited as stated, but was not regarded as obligatory, it, having been executed under duress.
We deem it unnecessary to discuss in detail the voluminous testimony taken and reported in this cause. It has received careful perusal and consideration, and it is our best judgment that it does not warrant the disbarment of the-respondent. There are strong reasons in this case for giving the respondent the benefit of all reasonable doubts that arise. Nominally the proceeding is an attack upon his professional character as a lawyer, while in fact it involves no professional engagement as such, but reaches and affects his character and standing as a judge, a position to which the people'have elected him, and if sustained would impair, if not destroy, his usefulness as an officer. When judges are guilty of misconduct or malfeasance in office, the appropriate remedy provided by the law is impeachment. If for any reason this direct remedy fails, the policy of resorting to an indirect remedy is very questionable, and the result likely to be unsatisfactory in any case. And while a precedent could only be deplored which should, even by inference, sanction or approve in a candidate for a judicial position the barter and sale of clerkships, placed by the law at his disposal, still more dangerous would be the precedent which would permit judicial character to be assailed indirectly, and judicial usefulness impaired, upon charges that the incumbent had been guilty of professional misconduct at the bar, prior to his elevation to- the bench, and long prior to the institution of the prosecution. For the reasons assigned the petition is denied.
Elbert, J., concurs.
Petition denied.