La Carrubba v. Klein

Shapiro, J. Petitioner-respondent La Carrubba is a Judge of the District Court of Suffolk County, having been elected to that office for a six-year term on November 5, 1974. In April, 1976 petitioner was charged with the crime of official misconduct (Penal Law, § 195.00), a misdemeanor (three counts). Shortly thereafter, she was suspended from her judicial duties, with pay. On December 16, 1976 she was convicted by jury of one count of official misconduct. Sentence was imposed on February 1, 1977 and an appeal is presently pending from that judgment of conviction. On December 30, 1976 the County Attorney notified the County Comptroller, among others, that in his opinion, petitioner’s judicial seat became automatically vacant upon her conviction, pursuant to section 30 (subd 1, par e) of the Public Officers Law, and that, accordingly, her salary and benefits had terminated on December 16, 1976. Apparently, through [101] an oversight, her salary was paid from that date to December 26, 1976, but no further payments were made to her thereafter. In late January, 1977 petitioner instituted this article 78 proceeding to annul the County Attorney’s directive and for reinstatement of her office and salary. The county opposed and counterclaimed for $938.70, constituting salary allegedly paid petitioner in error from December 16 to 26, 1976. Special Term granted the petition and dismissed the counterclaim. We affirm. The question for our determination is whether paragraph e of subdivision 1 of section 30 of the Public Officers Law, which declares that an office becomes vacant upon the officeholder’s "conviction of a felony, or a crime involving a violation of his oath of office” (we assume, for purposes of this appeal, that a conviction for official misconduct falls within the latter category), is applicable to judicial officers. The provisions dealing with our State judiciary are found in article VI of the New York State Constitution. Sections 1 through 19 deal with the establishment and organization of the Unified Court System and the organization and jurisdiction of the specific courts included therein. Section 20 deals with the necessary qualifications for persons eligible to hold judicial office (the number of years a person assuming judicial office has been admitted to practice law in this State), and it also contains a ban against holding other public or political office or engaging in the practice of law. Section 21 provides for the filling of vacancies occurring otherwise than by expiration of the Judge’s term, via elections, but nowhere does it treat with the subject of how or when such vacancies are created. Indeed, all of article VI contains but a single reference to the creation of a vacancy in a judicial office. That is found in paragraph (2) of subdivision b of section 20, which provides that if a Judge or Justice does not resign his judicial office within 10 days after his acceptance of the nomination for a nonjudicial office, his judicial office shall become vacant and the vacancy shall be filled in the manner provided for in section 21. Sections 22 through 24 concern the removal of judicial officers. Three methods are set forth: impeachment by the Assembly and conviction by the Senate (§ 24); removal by the Senate on recommendation of the Governor for cause, after notice of the charges and an opportunity to be heard (Judges [102] of the Court of Appeals and Justices of the Supreme Court may be removed by concurrent resolution of both houses) (§ 23); and, what is today the most commonly known and used method, removal for cause by the Court on the Judiciary (§ 22). Section 22, only recently amended effective September 1, 1976 (art VI, § 36-c), provides that any Judge or Justice of the Unified Court System may be censured, suspended or removed for cause, including, inter alia, misconduct in office (subd a). Further, and of extreme importance in resolving the issue before us, is the fact that it also provides (subd i) that a "judge or justice may not exercise the powers of his office while charged with a felony or while a proceeding for his removal or retirement by the court on the judiciary is pending” and "may not exercise the powers of his office nor receive his judicial salary upon pleading guilty to or being found guilty of a felony pending review of the conviction by a court of appellate jurisdiction.” (Emphasis supplied.) If the language of subdivision 1 means anything, it seems clear that what it is saying is that there is no automatic forfeiture of office or automatic vacancy upon conviction of a felony. Rather, it presupposes that the judicial office is still held by the incumbent, disabling him only from exercising its powers but permitting him to receive his salary up to the time he has been convicted. Further light on what our determination here should be may be found in the provisions of article XIII of the Constitution, which deals with "Public Officers”. Section 5 thereof declares that "[provision shall be made by law for the removal for misconduct or malversation in office of all officers, except judicial, whose powers and duties are not local or legislative and who shall be elected at general elections, and also for supplying vacancies created by such removal” (emphasis supplied). Section 5 thus prohibits the Legislature from providing by law for the removal of judicial officers. Section 6 of article XIII of the Constitution provides that the "legislature may declare the cases in which any office shall be deemed vacant when no provision is made for that purpose in this constitution” (emphasis supplied). Appellants contend that because section 6 does not expressly except judicial officers from its reach, and because there is a distinction between vacancy and removal, the declaration of an automatic vacancy in office upon conviction of a felony or a crime involving the violation of the oath of office contained in paragraph e of [103] subdivision 1 of section 30 of the Public Officers Law may be applied to judicial officers. We believe not. The subject of removal of judicial officers is governed exclusively by article VI of the Constitution, for section 5 of article XIII of the Constitution, which gives the Legislature the power to provide by law for removal on grounds of misconduct of public officers, expressly and in unambiguous terms excludes judicial officers from the scope of its embrace. In the abstract, we agree that there is a difference between vacancy and removal, the latter being but one instance in which an office may become vacant prior to the expiration of the term. However, the declaration of a vacancy upon the officeholder’s conviction of a felony or crime involving a violation of his oath of office is, in reality, nothing more than an indirect method of removing the officeholder for cause or misconduct. So viewed, it is section 5 of article XIII not section 6, which governs the situation and, hence, section 30 (subd 1, par e) of the Public Officers Law must be read as inapplicable to judicial officers if it is to be consistent with constitutional mandates (Matter of Keogh v Wagner, NYLJ, Dec. 27, 1962, p 12, col 1, affd on other grounds 20 AD2d 380, affd 15 NY2d 569). Though the question posed in this case is a vexing one, we are reinforced in our conclusion by the provisions of section 22 of article VI of the Constitution, which section, as noted, was only recently adopted, and declares, inter alia, that a Judge or Justice of the Unified Court System may not exercise the powers of his office or receive his judicial salary pending judicial review of his conviction for a felony. As previously noted, that provision manifestly contemplates the continuance of the incumbent in his judicial office through appellate review of his conviction or, stated another way, a non vacatur of the office upon conviction of a felony, much less of a misdemeanor as in the case of the respondent here. That the Legislature has recognized its constitutional inability to impose an automatic vacatur of judicial office under such circumstances is further demonstrated by the proposed amendment of section 22, which is presently awaiting second passage in the Legislature. That amendment specifically provides, in subdivision e thereof, that a Judge or Justice of the Unified Court System may be suspended by the Court of Appeals pending determination of a felony charge, that the suspension shall continue upon conviction, and that he shall [104] be removed from office if the conviction becomes ñnal, but adds that upon reversal of the conviction and dismissal of the accusatory instrument, the suspension shall be terminated. Subdivision g provides that a Justice suspended by the Court of Appeals shall receive his judicial salary during suspension unless the court directs otherwise and that if the court has so directed and the suspension is terminated, the court may direct that he receive his salary for such period of suspension (see 1976-77 Pocket Part to McKinney’s Cons Laws of NY, Book 2, Constitution, arts I to II, pp 13, 14). A clearer legislative recognition of the nonapplicability of the automatic vacancy statute (Public Officers, § 30, subd 1, par e) to judicial officers could hardly be imagined. We are constrained to conlude therefore that paragraph e of subdivision 1 of section 30 of the Public Officers Law does not and never was intended by the Legislature to apply to judicial officers. Therefore, petitioner is entitled to retain her judicial office until expiration of her term or the sooner occurrence of some other contingency, such as resignation or removal, which would properly bring about a vacancy in the office which she now holds.* The judgment should therefore be affirmed. Footnotes [*] We note in passing the anomaly presented by the provisions of section 22 of article VI of the Constitution in its present form, and which are even made more explicit in the provisions of its proposed amendment, which provide for continuance in office by a Judge convicted of a felony pending judicial review of his guilt,'and the fact that as a lawyer he is automatically disbarred upon such a conviction (Judiciary Law, § 90, subd 4) and that even a reversal on appeal does not permit his automatic reinstatement as a lawyer (see Matter of Barash, 20 NY2d 154; Matter of Ginsberg, 1 NY2d 144).