
    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. Ughe-tta
    Honorable James Gibson
    Honorable Harry D. Goldman
   The opinion of the court follows:

Per Curiam.

On April 15,1963 Melvin H. Ostebman, a Judge of the Court of Claims of the State of New York, appeared before a New York County Grand Jury which, as he was at that time and place informed and as he had previously been informed, was investigating to determine whether there was or had been a conspiracy to bribe a public officer attached to the New York State Liquor Authority. In the presence of the Grand Jury Judge Ostebman w;as asked by an Assistant District Attorney of New York County to sign a general waiver of immunity. He declined to do so and stated that he was willing to sign a form of waiver which he produced at the Grand Jury hearing and which, being of the kind referred to in section 6 of article I of the New York State Constitution, would waive immunity with respect to such questions only as should be related to the performance of his judicial duties. The prosecutor informed the Judge that the former desired to question the latter not about the performance of any judicial duties but as to a conspiracy to bribe a State Liquor Authority official. Judge Ostebman still refused to sign the general waiver and was thereupon excused by the Assistant District Attorney from further attendance before the Grand Jury. When the occurrence described in the paragraph above came to the attention of the Governor of the State of New York, the latter by telegram to Judge Osterman demanded that he resign his judicial office, notifying him that if he did not do so the Governor would request the convening of a Court on the Judiciary pursuant to section 22 of article VI of the State Constitution. Judge Osterman by letter from his counsel refused to resign, listing several reasons including a statement that the Judge was apparently an “ object or target ” of the investigation and that it was, therefore, a violation of his constitutional rights to call him before the Grand Jury except to question him as to his official conduct in office, citing section 6 of article I of the State Constitution. On receipt of counsel’s letter the Governor, within his powers as described in section 22 of article VI of the State Constitution, requested that a Court on the Judiciary be convened. It was so convened and the court appointed counsel to conduct the proceedings. Such counsel drew up and presented to the Court on the Judiciary, as written charges and causes for his removal, allegations that Judge Osterman had refused to sign a general waiver as above described, also that he had obstructed the Grand Jury investigation not only by refusing to sign the general waiver of immunity but in other described ways, and that he had illegally practiced law after becoming a Judge and had lied to the Assistant District Attorney when he denied that he had continued to deal with State Liquor Authority matters after becoming a Judge. On receipt of these charges from its designated attorney, the Court on the Judiciary pursuant to its rules made a preliminary determination that the charges alleged facts sufficient if proven to constitute cause for removal of Judge Osterman.

By reason of the subsequent proceedings about to be described, there is before the Court on the Judiciary at this time and passed on in this order and judgment one charge only, that is, the charge summarized in paragraph numbered 8 (c) and hereinafter called charge number 8 (c) which alleges a refusal, by refusing to sign a general immunity waiver, to co-operate with and assist the Grand Jury’s investigation into an alleged conspiracy to bribe a State Liquor Authority official. The other charges served on Judge Osterman, that is, those mentioned in paragraphs numbered 8 (a), 8 (b) and 8 (d), are reserved by the court for future disposition.

The answer filed to the charges admits that in March, 1963, three weeks before the Grand Jury appearance of Judge Osterman, he had been asked by the assistant prosecutor in a conversation at the latter’s office whether he (the Judge) had continued after he became a Judge to deal with State Liquor Authority matters and as to whether in July, 1962 while he was a Judge he had discussed with the State Liquor Authority Chairman a difficulty Bermuda Sales Corporation was having with the State Liquor Authority. The answer admitted that he (the Judge) had denied in that conversation that he had so dealt with or discussed any such matters. The answer admitted also that on his appearance before the Grand Jury Judge Osterman had been informed by the Assistant District Attorney 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. ’ ’ The answer further admitted that the Judge had been asked to and had refused to sign a general waiver of immunity and that, when he offered to waive immunity as to questions relating to his judicial service only, he had been informed that the prosecutor’s desire was to question him not about the performance of his judicial duties but as to a conspiracy to -bribe a State Liquor Authority official. In addition to the pleadings we have a written stipulation signed by counsel on both sides and putting-before the court an accurate transcript of the Grand Jury proceedings heretofore described.

On the pleadings and the stipulation above referred to, counsel designated to conduct the proceedings moved the court for a judgment of removal from office on charge 8 (c). Counsel for Judge Osterman cross-moved to dismiss that charge. On the oral argument it was conceded that when Judge Osterman came before the Grand Jury it and the prosecutor were in good faith investigating into alleged public corruption related to the State Liquor Authority, that they sought in good faith to question the Judge in connection with thpt inquiry, and that Judge Osterman on that and on a previous occasion was informed that such was the purpose of the questions the prosecutor wished to ask him, also that the Judge knew when he came before the Grand Jury that the alleged matters about which it was desired to question him were as of the period during which he was a Judge.

The question, therefore, to be answered by the court on these motions is this: is a Judge of a high court of the State guilty of wrongdoing amounting to cause for removal when he refuses to co-operate in an investigation of alleged corruption in a State agency except on condition that he be given immunity from prosecution for any crimes of his own disclosed by his answers? The issue can fairly be so stated since, although Judge Osterman offered to waive as to questions about his judicial conduct, he had been plainly told that the intent and purpose was to question him not as to such conduct but as to corruption in a named State agency. We do not have a situation where a Judge is, without such notification and without any knowledge or notice as to the subject matter under inquiry, requested to sign a general immunity waiver. We express no opinion as to a Judge’s rights and duties in such a situation. Our sole question is as to whether a Judge can remain on the Bench after he has refused to co-operate with a good faith investigation by a competent official body into alleged corruption in another branch of the government of the State of which he is a high judicial officer. Our answer must be and is that he cannot so continue to remain on the Bench and that his obstruction of the Grand Jury inquiry is cause for his removal within the meaning of section 22 of article VI of the New York State Constitution.

We reject the contention that section 6 of article I of the New York State Constitution is the whole law of the subject and absolves a Judge from any blame or penalty provided he signs the limited waiver therein described. Section 6 of article I, effective since 1938 (long before Judge Osterman was appointed) and applicable to all public officers including Judges, mandates removal from office for any refusal when called before a Grand Jury to sign an immunity waiver or answer questions 1 ‘ concerning the conduct of his office or the performance of his official duties ’ ’. That does not say or mean that a Judge who satisfies that minimum requirement is safe from any charge or penalty.

Judges are subject to another constitutional provision — section 22 of article VI — under which the present proceedings are taken. Made effective in 1948, this amendment set up a new tribunal for the trial of charges against Judges only and authorized their removal after trial for “ cause ”. Removal of Judges for cause ” by impeachment has been authorized by our successive State Constitutions for more than a century. The setting up of Courts on the Judiciary is the modern way of deciding as to “ cause ” for the removal of a Judge. Cause ” is an inclusive, not a narrowly limited, term. > Such cause ” may be directly associated with the Judge’s work as a Judge but it is not limited to such matters (see Matter of Friedman, 12 N Y 2d [a]). It follows that neither section 6 of article I nor People v. Doyle (1 N Y 2d 732) controls the present case.

Public officers including Judges may claim all the rights available to other citizens, including the right to claim immunity and refuse to waive it. It does not follow, however, that a Judge after successfully asserting such a right may claim another right to remain in his judicial office. It is now settled law that, despite his rights as a citizen to refuse to answer possibly incriminating questions, a public officer may be removed from his office for refusing to co-operate in official investigations by producing relevant information to competent authorities. Such an officer is not to be removed because of any inference of guilt arising from his refusal to talk. His fault and wrong is in withholding the truth which government is entitled to expect and receive from him. If this rule is applicable to minor employees such as those removed in Matter of Lerner v. Casey (2 N Y 2d 355, affd. 357 U. S. 468), Beilan v. Board of Educ. (357 U. S. 399) and Nelson v. Los Angeles County (362 U. S. 1) then it cannot be held inapplicable to high officers of the State. If a lawyer, considered as an officer of the court, can be ousted from office for such a refusal (Matter of Cohen, 7 N Y 2d 488, affd. 366 U. S. 468) then for a stronger reason a like penalty should be visited on the holder of a high office in the judicial department itself. Everything said in the Cohen opinions in the New York Court of Appeals and the United States Supreme Court, about the conditions and disabilities which are attached to the office of attorney and on which its tenure depends, applies with greater force to the office of Judge. “ Cause ” for removal of a Judge may be found not only in official misconduct but in his taking attitudes and positions which show unfitness for the office and unworthiness of the trust. Such unfitness and unworthiness is demonstrated by a refusal by a Judge sworn to enforce law to co-operate in any investigation of official corruption.

The motion for removal on charge numbered 8 (c) should be granted. The cross motion to dismiss the charge should be denied.

Melvin H. Osterman should be removed as of this date from the office of Judge of the Court of Claims of the State of New York.

Botein, J.

(concurring). If charge 8 (c) depended entirely on the naked stipulation that Judge Osterman, while the target of an investigation into official corruption launched in good faith by the District Attorney, had refused to sign a general waiver of immunity, I would vote to dismiss that charge.

In this State Judges may be removed by the Legislature and removal proceedings may be initiated by the Governor or Legislature, both representing other arms of government. Some Judges may be haled before a Grand Jury by District Attorneys who appear before them regularly as attorneys in adversary criminal actions, who may be resentful and not as fair and scrupulous as the District Attorney conducting the investigation involved in this proceeding. I need not dilate upon how critically the judicial arm of our great governing triumvirate might be weakened if Judges, of all persons, were deprived of the pattern of protection afforded by the due process, privileges and immunity clauses of the Federal Constitution, and which are so reassuring and fortifying to other citizens.

Judge Osterman, therefore, as was said in Matter of Cohen (7 N Y 2d 488, 495), “as a citizen could not be denied any of the common rights of citizens ’ ’. The court then went on to say of Cohen, however, that he stood before the inquiry * * * in another quite different capacity, also ”. It is clear that both the Court of Appeals and the United States Supreme Court, in affirming, held that Cohen could be disbarred not for asserting his rights and privileges as a citizen but for his refusal to fulfill Ms responsibilities as a lawyer to Ms profession and to the court.

Upon the rationale of the Cohen decision (affd. sub nom. Cohen v. Hurley, 366 U. S. 117), therefore, I believe that Judge Osterman when appearing before the Grand Jury stood in a quite different capacity than would Melvin Osterman as a private citizen. As so clearly indicated in the majority opinion, he refused to co-operate with a large scale, good faith investigation into alleged widespread corruption in an important State organization. He had previously been informed of the scope and nature of the matters on which the Grand Jury sought to examine Mm. It is evident he was in a position to contribute importantly to the Grand Jury’s inquiry — to an extent involving his alleged dealings with the Chairman of the State agency. He nevertheless sedulously evaded the co-operation he should have proffered, as set forth in the majority opinion, by tendering a waiver of immunity restricted to an area in which he knew the Grand Jury had no interest — namely, the performance of his judicial duties.

I cannot hold with the majority that refusal by a Judge to sign a general waiver of immunity or to co-operate in any investigation of official corruption warrants his removal. I do believe, however, that where, as here, in good faith a prosecutor is convinced a Judge is so profoundly involved in so extensive an investigation of official corruption, the Cohen decisions (supra) mandate that Judge Osterman was required to co-operate to the extent requested by the District Attorney.

I, therefore, concur and vote for Judge Osterman’s removal on the afore-mentioned ground of non-co-operation.

Chief Judge Desmond and Judges Dye, Ughetta, Gibson and Goldman concur; Judge Botein concurs in a separate opinion.

Motion for judgment of removal granted.

Cross motion to dismiss charge 8 (c) denied.  