
    In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Melvin H. Osterman, Judge of the Court of Claims of the State of New York.
    Argued September 23, 1963;
    decided October 8, 1963.
    Present: Honorable Charles S. Desmond, Presiding.
    Honorable Marvin R. Dye
    Honorable Bernard Botein
    Honorable Henry L. Hghetta
    Honorable James Gibson
    Honorable Harry D. Goldman
   On April 16, 1963 Governor Nelson A. Rockefeller requested Chief Judge Charles S. Desmond “ to convene a Court on the Judiciary to take appropriate action” under section 22 of article VI of the State Constitution with respect to Judge Melvin H. Osterman, a Judge of the Court of Claims. A letter of that date from the Governor to the Chief Judge read as follows:

‘ ‘ In communication with Frank S. Hogan, District Attorney of New York County, I have been advised that Judge Melvin H. Osterman, Judge of the Court of Claims, was called to appear yesterday before the Grand Jury of New York for questioning in the Grand Jury’s pending inquiry to determine whether violations of the Penal Law have been committed in connection with the administration of the State Liquor Authority. I have been further advised that, when asked to execute a waiver of immunity, Judge Osterman refused to sign a general waiver but stated that he would sign a waiver limited only to the conduct of his judicial office.

“Yesterday, by telegram I advised Judge Osterman that in view of his refusal to sign a general waiver of immunity, I was requesting him to resign his judicial office and that if he were not willing to do so, I would be compelled to request you to convene a Court on the Judiciary to take appropriate action under Section 22 of Article 6 of the State Constitution. A copy of my telegram to Judge Osterman is attached.

“I have today received a letter from Harris B. Steinberg, Esq., counsel to Judge Osterman, who advised me, on behalf of Judge Osterman, that Judge Osterman will not resign and rejects my request. A copy of Mr. Steinberg’s letter is attached.

‘ ‘ In the circumstances, I hereby request you to convene a Court on the Judiciary to take appropriate action under Section 22 of Article 6 of the State Constitution.”

On April 29,1963, pursuant to the Governor’s request and in accordance with section 22 of article VI of the New York State Constitution, Chief Judge Charles S. Desmond con vened the Court 011 the Judiciary. On May 25,1963 the court sat, adopted rules, appointed Raymond J. Camion as Clerk of the Court, and designated Bruce Bromley of New York, New York, attorney at law, to act as counsel to conduct the proceeding entitled: “In the Matter of the Proceedings pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Melvih H. Ostermah, Judge of the Court of Claims of the State of New York.” On the same day the court adopted the following Rules of Practice of the Court on the Judiciary in pursuance of article VI 22, subd. f) of the New York State Constitution.

Bules oe Practice oe Court oh Judiciary

Bulb I

Four members of the court shall constitute a quorum and the affirmative concurrence of four shall be necessary for a decision except that where less than four members of the court shall vote in favor of the removal or retirement of a judicial officer an order shall be entered dismissing the proceeding.

Bule II

The court shall keep its records and hold its sessions, unless, from time to time otherwise ordered by the court at Court of Appeals Hall in the City of Albany.

Bulb III

The seal of the court shall be two and one quarter inches in diameter and shall consist of the device of the arms of the State of New York surrounded with the inscription: “ State of New York Court on the Judiciary ”. The clerk of the court shall have custody of the seal.

Bule IY

The decisions, judgments, orders, notices and subpoenas of the court shall be attested by the clerk under the seal of the court.

Bule V

Upon convening of the court, it shall determine, preliminarily, whether the complaint for removal or grounds for retirement of a judicial officer that have been presented state facts sufficient to constitute cause for the preferral of charges for removal or ground for retirement, and are in form fairly permitting an answer.

Bule VI

(a) If such complaint for removal or grounds for retirement are determined sufficient within Buie V, the court shall direct that a statement of the charges alleged for removal or of the grounds alleged for retirement be personally served on the respondent, who shall within twenty days of such service, file his answer with the clerk of the court and serve a copy on counsel, if any, designated by the court to conduct the proceeding.

(b) If such complaint for removal or grounds for retirement are determined sufficient within Buie V, but are not in a form fairly permitting an answer, the court shall direct the complaining party, or the attorney designated by the court, to prepare in sufficient form the charges for service in accordance with these rules.

(c) If such complaint for removal or grounds for retirement are determined by the court insufficient within Buie V, the court shall dismiss them; and the presiding judge shall give written notice to the complaining party, the respondent, the Governor, the Temporary President of the Senate and the Speaker of the Assembly of such dismissal.

Bule VII

The service on the respondent of the statement of the charges alleged for removal and a statement of the date set by the court for the trial thereof shall constitute the preferral of charges as provided by Constitution, Article VI, § 22 (e); and thereupon the presiding judge of the court shall give written notice to the Governor, the Temporary President of the Senate and the Speaker of the Assembly stating the name of the judicial officer who is respondent and setting forth a copy of such charges and the date set by the court for the trial thereof.

Rule VIII

Upon the preferral of the same charges by a member of the legislature, the requirement of the respondent to answer if his time to do so has not theretofore expired, shall be suspended, and all proceedings in the court in his case shall be stayed pending the determination of the legislature.

Rule IX

Objection in point of law or application for a more definite and certain statement or for particularization in any respect may be made upon timely notice at a time fixed by the court.

Rule X

The court may try an issue of fact, or direct a hearing thereof before one or more members of the court, an official referee of the Court of Appeals or of the Supreme Court to hear and report.

Rule XI

1. If any witness refuses to answer a question or to produce evidence of any kind on the ground that he may be incriminated thereby, the court may, upon request of the counsel designated to conduct the proceeding, if it deems it necessary and proper, order such person to answer the question or produce the evidence. If such person complies with the order, and if, but for this rule, he would have been privileged to withhold the answer given or the evidence produced by him, then immunity shall be conferred upon him, as provided in Section 22 (f) of Article VI of the Constitution of the State of New York.

2. Immunity ” as used in this rule means such person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order, he gave answer or produced evidence, and that no such answer given or evidence produced shall be received against him upon any criminal proceeding. But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury or contempt committed in answering, or failing to answer, or in producing or failing to produce evidence, in accordance with the order, and any such answer given or evidence produced shall be admissible against him upon any criminal proceeding concerning such perjury or contempt.

Rule XII

The fees and mileage of witnesses attending under subpoena shall be the same as provided for witnesses in an action in the Supreme Court in the county in which they are required to appear and such witnesses shall not be entitled to prepayment thereof. The Comptroller .shall pay such fees and mileage after audit upon the certificate of the Clerk.

By letter dated May 25, 1963 Charles S. Desmond, Presiding Judge of the Court on the Judiciary, informed the Governor of the State of New York, the Lieutenant Governor, the President Pro Tempore of the New York State Senate and the Speaker of the Assembly (see N. Y. Const., art. VI, § 22, subd. e) that charges had been preferred against Melvin H. Osterman, Judge of the Court of Claims, by the service upon him on May 25,1963 of a copy of charges for removal; that the Court on the Judiciary, pursuant to rule V of its Rules, had determined that such charges stated facts sufficient to constitute cause for the removal of Melvin H. Osterman, Judge of the Court of Claims, and contained allegations of fact in a form fairly permitting am cmswer by him; that the court had directed that a copy thereof be served upon him with the opportunity to cmswer witMn 20 days after such service, and that the court had set August 6,1963 as the date for the trial of the charges.

On May 25, 1963 counsel designated by the Court on the Judiciary to conduct the proceedings notified Melvin H. Osterman, Judge of the Court of Claims, that pursuant to subdivision (a) of rule VI of the Rules of Practice of the Court on the Judiciary, he was required to serve an cmswer to the following charges for removal:

I. Melvin H. Osterman (hereinafter called Judge Osterman) was appointed by the G-overnor of the State of New York as a Judge of the Court of Claims of the State of New York on July 11, 1961, during a recess of the Senate of the State of New York. On January 11, 1962, the 'Senate consented to his appointment for a term to expire on July 11, 1970.

2. The Court of Claims is a court of record of State-wide jurisdiction which is empowered to determine claims against the State of New York for the appropriation of property, for breach of contract, for torts of its officers and employees and for certain other matters, and to determine counterclaims by the State against claimants.

3. During his term of office as a Judge of the Court of Claims, Judge Ostermah has practiced the profession of law, contrary to the prohibition against his doing so contained in the Court of Claims Act, by assisting persons in their legal dealings with the New York State Liquor Authority (hereinafter called the State Liquor Authority).

4. On March 26, 1963, Judge Ostermah went to the office of Alfred J. Scotti, the Chief Assistant District Attorney of New York County (hereinafter called Chief Assistant District Attorney Scotti), who was conducting and was duly authorized to conduct a Grand Jury investigation to determine whether crimes had been committed in connection with the administration of the New York State Liquor Authority. Judge Ostermah, in answer to Chief Assistant District Attorney Scotti’s questions, stated that he had practiced law in relation to State Liquor Authority matters before becoming a Judge but denied that he had continued to deal with State Liquor Authority matters after his accession to the Bench. He denied that in July, 1962 he had discussed with the then Chairman of the State Liquor Authority, Martin C. Epstein, the difficulties the Bermuda Sales Corporation, operating Bermuda Wines & Spirits at 31 East 72nd Street, New York, New York, was having with the State Liquor Authority with respect to its liquor license.

5. Chief Assistant District Attorney Scotti thereupon told Judge Ostermah that there was evidence to contradict Judge Osterman’s denials and that if Judge Ostermah repeated the denials referred to in paragraph 4 herein under oath before the Grand Jury investigating the State Liquor Authority he would face indictment for perjury.

6. On April 15, 1963, Judge Osterman appeared, not pursuant to a subpoena, before a quorum of a Grand Jury of New York County which had been convened on December 4, 1962. He was told by Chief Assistant District Attorney Scotti that he had been requested to appear before the Grand Jury “ in connection with an investigation to determine whether there was in existence a conspiracy to commit the crimes of bribery of a public officer attached to the State Liquor Authority.” Judge Osterman was asked by Chief Assistant District Attorney Scotti to sign a general waiver of immunity so that any answers he gave before the Grand Jury could be used against him in the event a criminal proceeding should be instituted against him. He refused to sign such a waiver and stated that he was only willing to sign a waiver of immunity with respect to answers to questions that involved performance of his judicial duties. Chief Assistant District Attorney Scotti stated that he wanted to question Judge Osterman about a conspiracy to bribe a State Liquor Authority official and not about the performance of his judicial duties and excused Judge Osterman.

7. Judge Osterman attempted to obstruct the investigation of whether there had been a conspiracy to bribe an official of the State Liquor Authority by conspiring with his secretary, Grace O’iShaughnessy, to remove from his office a typewriter on which, subject to his direction, she had typed letters dealing with State Liquor Authority matters and to hide said typewriter in her apartment knowing that said typewriter might be sought by investigative authorities in connection with said investigation.

8. Cause exists for the removal of Melvin H. Osterman as a Judge of the Court of Claims in that:

(a) in violation of a statutory prohibition against his doing so, he practiced law after becoming a Judge;

(b) he did not tell the truth to Chief Assistant District Attorney Scotti, an official duly authorized to conduct an inquiry into whether there had been a conspiracy to bribe an official of the State Liquor Authority, in that he denied that he continued to deal with State Liquor Authority matters after becoming a Judge;

(c) he refused to co-operate with and assist the Grand Jury investigating whether there had been a conspiracy to bribe an official of the State Liquor Authority in that he refused to sign a general waiver of immunity with respect to answers that he might give concerning such conspiracy; and

(d) he attempted to obstruct the investigation of whether there had been such a conspiracy by conspiring to remove from his office and hide the typewriter that his secretary, subject to his direction, had used to write letters dealing with State Liquor Authority matters, knowing that said typewriter might be sought by investigative authorities in connection with said investigation.

By answer dated June 3, 1963, Judge Osterman, by his attorney, Harris B. Steinberg, alleged as follows:

Admitted each and every allegation contained in paragraphs 1, 2, 4, 5 and 6 of the charges for removal.

Denied each and every allegation contained in paragraphs 3, 7 and 8 thereof.

By stipulation dated September 9,1963 counsel designated to conduct the proceeding and counsel for Judge Osterman agreed that:

(1) the hearing before the Court on the Judiciary on September 23, 1963, will be limited, subject to the approval of the Court, to the question whether Judge Melvin H. Osterman should be removed from office on the ground described in paragraph 8 (c) of the Charges for Removal filed on May 25, 1963; and

“ (2) the excerpt of the transcript of the April 15, 1963 session of The Fourth December 1962 Grand Jury * * * is an accurate transcript of the appearance of Melvin H. Osterman before that Grand Jury on that date.”

Also on September 9, 1963, by notice of motion returnable September 23,1963, Bruce Bromley, counsel designated to conduct the proceeding, sought judgment removing Melvin H. Osterman from his office as Judge of the Court of Claims of the State of New York for cause on the grounds stated in paragraph 8 (c) of the Charges for Removal dated May 25, 1963.

By notice of cross motion, dated September 12, 1963 and returnable September 23, 1963, Harris B. Steinberg, attor ney for Melvin H. Osterman, sought 'em order “ pursuant to rule IX of the Court’s Rules,' dismissing the charge contained in Paragraph 8 (c) of the Charges for Removal, upon the objection in point-of law that-said charge-does not state amy cause for removal within the meaning of Article VI, Section 22; of-the Néw York State Constitution.”

On September 23,1963; upon the argument on the motion and cross motion ¡Karris Bi Steinberg) counsel - for Judge Osterman contended that: ‘ ■

I. The “cause” removal provision found in section'22 of article VI of the Constitution is inapplicable to the present case, because removal, for failure to sign a waiver of immunity is governed exclusively by section 6 of article I.

II. The movant’s claim that the-respondent’s lack of. “ cooperation ” with -the authorities who were seeking to expose official corruption amounted to “cause” for removal under section 22 of article VI is unfounded in law and fact.

III. The ‘removal of Judge Osterman by this court would violate his rights, vouchsafed to him by the due process, privilege and immunities, and equal protection clauses of the Fourteenth Amendment to the United States Constitution; ■

In support of the motion and in opposition to the cross ' motion, Bruce Bromley, counsel designated to conduct the proceeding (Frederick A. 0. Schwarz, Jr., of counsel), argued that:

I. The court is being asked.to remove Judge Osterman not on the ground that he.was guilty, of corruption, but because he refused to co-operate with. and. assist an-investigation of official corruption unless given a guarantee that the information dealing with official corruption' (not involving performance of his official duties) that he supplied hot be used against him in a criminal prosecution. As' a citizen, Judge Osterman had a right to refuse to waive the immunity which arose because of his constitutional privilege not to incriminate himself. As a Judge he had a duty to co-operate with and assist the investigation of corruption in the State Government. By failing to fulfill his duty, he broke the condition upon which his continued tenure as a Judge depends.

II. Judge Osterman did meet the limited requirement of section 6 of article I of the State Constitution, applicable to all public officers, that he agree to waive immunity with respect to questions concerning the conduct of his office and the performance of his official duties. But a Judge’s obligation goes beyond the limited requirement of section 6.  