In re the Proceedings Pursuant to Section 22 of Article VI of the Constitution (43 N.Y.2d a, 1977)

The opinion denying the motion to rescind appointment of Harold R. Tyler as counsel to the court reads as follows:

Per Curiam.

The motion to rescind the appointment of Harold R. Tyler, Jr., as counsel to the court is denied.

Prior Courts on the Judiciary have not hesitated to give a reasonable and sensible construction to the constitutional provisions pertaining to the powers of the court. So, even in the absence of specific constitutional authorization, in Matter of Waltemade (37 NY2d [a], [pp]), the court held that it had the power to designate a Referee to hear the evidence and report to the court without the court itself hearing the evidence; in Matter of Schweitzer (29 NY2d [a], [bb]) and Matter of PBngst (33 NY2d [a], [bb]), the court held that it had the power to suspend a Judge or Justice without pay following the filing of charges of misconduct against him.

Similarly, in the present case, where the Court on the Judiciary has been convened by the Chief Judge of the Court of Appeals on his own motion and not upon the recommendation of the Commission on Judicial Conduct, we do not read the provisions of section 22 of article VI of the Constitution as a limitation on the powers of the court to select counsel. The Constitution recognizes the power of the court to select the attorney for the commission as its counsel, but the recognition of this power does not concomitantly exclude the power of the court to select counsel other than the attorney for the commission under the circumstances here present.

Presiding Judge Hopkins and Judges Markewich, Suozzi, Kane and Simons concur in Per Curiam opinion. Dated: October 12,1977 Attest:

Irving N. Selkin (Signed)

Clerk of the Court on the Judiciary

On November 16, 1977 Chief Judge Breitel ordered the investigation expanded to include other matters:

CONFIDENTIAL

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 The Honorable Jacob D. Fuchsberg, Associate Judge of the Court of Appeals.

Upon the request of the Court on the Judiciary and its counsel, and pursuant to section 22 of article VI of the New York State Constitution, I hereby order that the Court on the Judiciary convened in the above matter by order dated September 6, 1977, investigate, hear, and determine matters concerning the conduct of the above-named Associate Judge of the Court of Appeals other than and in addition to those specified in the September 6, 1977 transmittal letter to The Honorable James D. Hopkins, Presiding Justice of this Court on the Judiciary, to wit:

allegations that the above-named Associate Judge of the Court of Appeals obtained the advice and assistance of experts on the law and others in proceedings before the Court of Appeals in a manner not consistent with the requirements of section 33.3 of the Rules Governing Judicial Conduct (22 NYCRR Part 33 [1974]) and Canon 3 of the Code of Judicial Conduct as adopted by the New York State Bar Association (1973); and allegations that the above-named Associate Judge of the Court of Appeals engaged in and committed other violations of Rules and Canons governing judicial conduct including, but in no way limited to, sections 33.2 and 33.5 of the Rules Governing Judicial Conduct (22 NYCRR Part 33 [1974]) and Canons 2 and 5 of the Code of Judicial Conduct as adopted by the New York State Bar Association (1973).

Charles D. Breitel (Signed)

Charles D. Breitel

Chief Judge of the State of New York

STATE OF NEW YORK COURT ON THE JUDICIARY

At a Court on the Judiciary for the State of New York held at the Courthouse of the Appellate Division of the Supreme Court, Second Judicial Department, on the 29th day of December A.D. 1977.

Present: Honorable James D. Hopkins, Presiding.

Honorable Arthur Markewich

Honorable Joseph A. Suozzi

Honorable T. Paul Kane

Honorable Richard D. Simons

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 The Honorable Jacob D. Fuchsberg, Associate Judge of the Court of Appeals

Pursuant to section 580.9 of the rules of this court, it is hereby

Ordered that the next session of this court be held on January 16, 1978 at 10:00 a.m. at the courthouse of the Appellate Division, First Department; that the clerk notify counsel for respondent and respondent himself to be present; that the session be closed to the public, but that the proceeding be recorded by a court reporter.

James D. Hopkins (Signed)

Presiding Officer,

Court on the Judiciary

Attest:

Irving N. Selkin (Signed)

Clerk of the Court on the Judiciary

On February 21, 1978, a letter was sent from Herbert M. Wachtell, counsel for respondent, to Irving N. Selkin, as Clerk of the Court on the Judiciary, with respect to waiver of conñdentiality by the respondent.

CONFIDENTIAL

During the course of the proceedings of January 16, 1978, there was discussion as to whether—should the court determine that the filing of a complaint against Judge Fuchsberg in this matter was not appropriate—the court would be empowered to issue a report reviewing the investigation that has been made and articulating the reasons for its determination. In this regard, inquiry was directed to the undersigned as to whether Judge Fuchsberg would be prepared to waive provisions with respect to confidentiality that would otherwise operate to inhibit the publication of such a report.

It was my thought at the time that I had indicated such a waiver on behalf of Judge Fuchsberg. However, in the course of a meeting yesterday with Judge Tyler on a separate subject, it was indicated by Judge Tyler that questions had been raised as to whether my wording of such intended waiver of confidentiality (Tr 84) had been conditional or otherwise insufficient to permit the court the latitude of rendering a report of this nature, should the court be so inclined.

To obviate any misunderstanding which may have resulted from my choice of language on the January 16 record, I wish hereby formally to set forth for the court that the waiver to permit the court to render such a report is intended to be entirely unconditional. This waiver is being expressed with Judge Fuchsberg’s full approval.

I hope that this lettér of clarification may be helpful to the court in its deliberations and respectfully request that a copy of this letter be furnished to each member of the panel. Judge Desmond, our cocounsel, joins in this letter.

The opinions on the censure of Jacob D. Fuchsberg read as follows: