author: Gabrielli, J.

text:
    Angela Tucker et al., Respondents, v Philip L. Toia, Individually and as Commissioner of the New York State Department of Social Services, Appellant.
    Argued October 5, 1977;
    decided November 10, 1977

      POINTS OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Clifford A. Royael and
      Jean M. Coon of counsel), for appellant.
    I. Section 1 of article XVII of the State Constitution does not create a fundamental right in needy persons to receive aid, care and support from the State and its subdivisions. (People v Westchester County Nat. Bank of Peekskill, N. Y, 231 NY 465; Matter of Uhlmann v Conway, 277 App Div 478; Matter of Figueroa v Bronstein, 38 NY2d 533; Matter of Malpica-Orsini, 36 NY2d 568; Montgomery v Daniels, 38 NY2d 41; Matter of Barie v Lavine, 40 NY2d 565; Matter of Levy, 38 NY2d 653.) II. Section 15 of chapter 76 of the Laws of 1976 does not violate plaintiffs-respondents’ right to equal protection of the laws under section 11 of article I of the New York State Constitution. (Matter of Malpica-Orsini, 36 NY2d 568; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326; Montgomery v Daniels, 38 NY2d 41; Matter of Bickford v Bickford, 55 AD2d 719; Matter of Barie v Lavine, 40 NY2d 565; Dandridge v Williams, 397 US 471; Rasmussen v Toia, 420 F Supp 757; Lascaris v Shirley, 420 US 730.)

      K. Wade Eaton, Steven L. Brown, Rene H. Reixach, Jr., and David W. Beier, III, for respondents.
    I. Section 15 offends the concept of equal protection of the laws. (Matter of Patricia A., 31 NY2d 83; Montgomery v Daniels, 38 NY2d 41; Matter of Malpica-Orsini, 36 NY2d 568; Skinner v Oklahoma, 316 US 535; Griswold v Connecticut, 381 US 479; Shapiro v Thompson, 394 US 618; Matter of Levy, 38 NY2d 653; Matter of Figueroa v Bronstein, 38 NY2d 533; Matter of Dowling, 219 NY 44; Association for Protection of Adirondacks v MacDonald, 228 App Div 73, 253 NY 234.) II. Section 15 unconstitutionally infringes upon rights guaranteed by section 1 of article XVII of the New York State Constitution. (Matter of Atkin v Onondaga County Bd. of Elections, 30 NY2d 401; O’Brien v Skinner, 31 NY2d 317, 414 US 524; People ex rel. Wayburn v Schupf, 39 NY2d 682; Alevy v Downstate Med. Center of State of N. Y, 39 NY2d 326.)

      Marttie L. Thompson, Michael A. O’Connor, Ira S. Bezoza and Cynthia Mann for Community Action for Legal Services, Inc., and another, amici curiae.

    The implementation of section 15 of chapter 76 of the Laws of 1976 violates appellant’s duty under section 1 of article XVII of the New York State Constitution to provide for the needs of those persons who are unable to maintain themselves. (Matter of Barie v Lavine, 48 AD2d 36, 40 NY2d 565; Fuller v Nassau County Dept, of

      Social Servs., 77 Misc 2d 677; Matter of Szanto v Dumpson, 77 Misc 2d 392; Matter of Arnold v Dumpson, 78 Misc 2d 703; Matter of Hudson v Sipprell, 76 Misc 2d 684; Matter of Colon v Lavine, 48 AD2d 656; Matter of Sloat v Board of Examiners of Bd. of Educ., 274 NY 367; Matter of Carow v Board of Educ., 272 NY 341; Sgaglione v Levitt, 37 NY2d 507; Matter of Uhlmann v Conway, 277 App Div 478; Matter of Barthelmess v Cukor, 231 NY 435.)

      Joseph B. Robison and Stephen M. Jacoby for American Jewish Congress, amicus curiae.

    I. Under section 1 of article XVII of the New York State Constitution needy persons have individual rights to "aid, care and support” by the State. (Matter of Jones v Berman, 37 NY2d 42; Matter of Barie v Lavine, 48 AD2d 36, 40 NY2d 565.) II. Section 15 of chapter 76 of the Laws of 1976 violates section 1 of article XVII of the New York State Constitution. III. The rights of needy persons under section 1 of article XVII of the New York State Constitution are fundamental rights, and classifications infringing those rights are subject to strict scrutiny in equal protection challenges. (Matter of Malpica-Orsini, 36 NY2d 568; San Antonio School Dist. v Rodriguez, 411 US 1; Matter of Figueroa v Bronstein, 38 NY2d 533; Matter of Levy, 38 NY2d 653; Matter of Barie v Lavine, 40 NY2d 565; Dandridge v Williams, 397 US 471; Lindsey v Normet, 405 US 56.)
   OPINION OF THE COURT

Gabrielli, J.

The Commissioner of the State Department of Social Services appeals directly to this court, pursuant to CPLR 5601 (subd [b], par 2), from a judgment of the Supreme Court, Monroe County (Smith, J.), declaring section 15 of chapter 76 of the Laws of 1976 (now a part of Social Services Law, § 158), to be unconstitutional, and enjoining its implementation and enforcement. We affirm the judgment appealed from, on the ground that the challenged section constitutes a substantive violation of section 1 of article XVII of the New York State Constitution.

New York residents under the age of 21 who are in need of public assistance normally receive aid through either the Federally subsidized Aid to Families with Dependent Children Program (AFDC) (Social Services Law, §§ 343-362), or the State’s broad Home Relief Program (Social Services Law, §§ 157-166). The determination of which program is applicable in a particular instance is based on whether the needy individual under 21 is residing with either a parent or a legally responsible relative. If he is residing with such a person, he is eligible for AFDC, but not home relief, whereas if he is not residing with such a person, entitlement to benefits stems from the home relief program and not AFDC.

Section 15 of chapter 76 of the Laws of 1976 amended subdivision (a) of section 158 of the Social Services Law, the section which determines eligibility for home relief. As amended, the statute provides that home relief is not to be provided to a person under the age of 21 who does not live with a parent or legally responsible relative, unless and until the applicant commences a support proceeding against any such parent or relative and an order of disposition is obtained in that support proceeding.* Prior to the enactment of section 15, no such limitation was imposed upon a needy young person’s right to public assistance. Rather, the public welfare authorities were subrogated to whatever right the recipient might have to support from a parent or responsible relative (see Social Services Law, § 101 et seq.; Family Ct Act, § 415). Under that system, a person under the age of 21, whether or not residing with a parent or responsible relative, was entitled to public assistance upon proof of need, regardless of the existence of a parent or responsible relative, and it was left to the State to seek to recoup its welfare expenditures via a support proceeding against any such parent or relative. This is the method which was used in both AFDC and home relief cases prior to adoption of the section under attack and it is of interest to note that it is the method still used in AFDC cases.

Plaintiffs in this action are three indivduals under the age of 21 who are not living with a parent or responsible relative, and are thus eligible only for home relief, not for AFDC. They are concededly needy and, prior to the effective date of section 15, they would have been and were entitled to home relief, having met all requisite criteria.

One of the plaintiffs was 18 years old at the time this action was commenced. His father had abandoned his mother before plantiffs birth, and his whereabouts are unknown. Until 1976, the son had lived with his mother, and was receiving an AFDC grant. His mother was then committed to a State hospital due to mental illness and, as a result, the son became ineligible for AFDC. Although he ultimately obtained a final disposition in a support proceeding against his mother in an attempt to satisfy section 15, he was denied home relief on the ground that he had not obtained a final disposition in a support proceeding against his missing father.

A second plaintiff was 19 years old, pregnant, and living alone when this action was commenced. Her mother was deceased, and her father was living in Alabama. Her sole source of income was home relief. On October 12, 1976, she was notified that all public assistance would be terminated in eight days unless she could produce within that time a court order of disposition in a support proceeding against her father.

A third plaintiff was an 18 year old, unemployed, high school graduate when this action was commenced. Prior to August, 1976 she lived with her mother and five siblings on an AFDC grant. She then left home due to family difficulties, and ultimately applied for home relief. Her application was denied because of her failure to obtain an order of disposition in a support proceeding against her father, who had disappeared some 10 years ago.

Standing uncontroverted is the accepted fact and reality that in each of these cases in order to obtain the required "disposition”, it would take from several weeks to several months, during which time no public assistance would be available to these needy young people. Indeed, in the third plaintiffs case, Family Court officials originally refused to accept her support petition because she was unable to provide an address for her missing father. In the second mentioned case, Family Court officials estimated that since her father was in Alabama and any support proceeding would have to be conducted in accordance with the Uniform Support of Dependents Law (Domestic Relations Law, art 3-A), it would take a minimum of 10 weeks to obtain a disposition. In certain areas of the State even greater delays are normal, and, in fact, it has been estimated that in New York City it will often take from 10 to 12 months to obtain a "disposition” in such a support proceeding. Under the challenged statute, the plaintiffs and others in similar situations are, of course, denied any public assistance during this period, although they meet all criteria for measuring need, solely on the basis of their failure to obtain a disposition. Since they do meet the need criteria, and are thus a fortiori unable to support themselves without public aid, one must wonder how they are to survive this period of waiting for an overcrowded Family Court system to process their often quite futile support petitions.

In New York State, the provision for assistance to the needy is not a matter of legislative grace; rather, it is specifically mandated by our Constitution. Section 1 of article XVII of the New York State Constitution declares: "The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine”. This provision was adopted in 1938, in the aftermath of the great depression, and was intended to serve two functions: First, it was felt to be necessary to sustain from constitutional attack the social welfare programs first created by the State during that period (cf. People v Westchester County Nat. Bank, 231 NY 465); and, second, it was intended as an expression of the existence of a positive duty upon the State to aid the needy.

The legislative history of the Constitutional Convention of 1938 is indicative of a clear intent that State aid to the needy was deemed to be a fundamental part of the social contract. For example, the report of the Committee on Public Welfare, the group which drafted what became section 1 of article XVII of our Constitution, specifically states that one purpose of the amendment was to "recognize the responsibility of the State for the aid, care and support of persons in need” (Revised Record of the Constitutional Convention of the State of New York, vol II, p 1084 [1938]). Even more explicit are the comments by Edward F. Corsi, Chairman of the Committe on Social Welfare, in moving the adoption of the provision by the convention:

"We have made provision for the relief of the needy. Convinced that the care of the unemployed and their dependents is in our modern industrial society a permanent problem of major importance affecting the whole of society, we have recommended that:

" 'The aid, care and support of the needy are public concerns and shall be provided by the State and by such of its subdivisions and in such manner and by such means as the Legislature may from time to time determine.’

"Here are words which set forth a definite policy of government, a concrete social obligation which no court may ever misread. By this section, the committee hopes to achive two purposes: First: to remove from the area of constitutional doubt the responsibility of the State to those who must look to society for the bare necessities of life; and, secondly, to set down explicitly in our basic law a much needed definition of the relationship of the people to their government.

"While the obligation expressed in this recommendation is mandatory, in that the Legislature shall provide for the aid, care and support of persons in need, the manner and the means by which it shall do so are discretionary.

"The Legislature may continue the system of relief now in operation. It may preserve the present plan of reimbursement to the localities. It may devise new ways of dealing with the problem. Its hands are untied. What it may not do is to shirk its responsibility which, in the opinion of the committee, is as fundamental as any responsibility of government” (Revised Record of the Constitutional Convention, vol III, p 2126 [1938]).

In view of this legislative history, as well as the mandatory language of the provision itself, it is clear that section 1 of article XVII imposes upon the State an affirmative duty to aid the needy (see, e.g., Matter of Colon v Lavine, 48 AD2d 656; Fuller v Nassau County Dept, of Social Servs., 77 Misc 2d 677, 683-684; Matter of Szanto v Dumpson, 77 Misc 2d 392, 396; Matter of Hudson v Sipprell, 76 Misc 2d 684, 687; see, also, Matter of Jones v Berman, 37 NY2d 42, 54-55). Although our Constitution provides the Legislature with discretion in determining the means by which this objective is to be effectuated, in determining the amount of aid, and in classifying recipients and defining the term "needy”, it unequivocally prevents the Legislature from simply refusing to aid those whom it has classified as needy. Such a definite constitutional mandate cannot be ignored or easily evaded in either its letter or its spirit (see Flushing Nat. Bank v Municipal Assistance Corp. for City of N. Y., 40 NY2d 731, 737, 739; Sgaglione v Levitt, 37 NY2d 507; Matter of Sloat v Board of Examiners, 274 NY 367, 370).

We find that section 15 of chapter 76 of the Laws of 1976 is unconstitutional in that it contravenes the letter and spirit of section 1 of article XVII of the Constitution. The effect of the questioned statute is plain: it would effectively deny public assistance to persons under the age of 21 who are concededly needy, often through no fault of their own, who meet all the criteria developed by the Legislature for determining need, solely on the ground that they have not obtained a final disposition in a support proceeding. Certainly, the statute is in furtherance of a valid State objective, for it is intended to prevent unnecessary welfare expenditures by placing the burden of supporting persons under 21 upon their legally resposible relatives. This valid purpose, however, cannot be achieved by methods which ignore the realities of the needy’s plight and the State’s affirmative obligation to aid all its needy.

In Matter of Barie v Lavine (40 NY2d 565), we were presented with a somewhat similar challenge to a social services regulation providing for the temporary suspension of recipients who unjustifiably refuse to accept employment. We summarily dismissed the constitutional arguments proffered in Barie, stating: "The Legislature may in its discretion deny aid to employable persons who may properly be deemed not to be needy when they have wrongfully refused an opportunity for employment” (id., at p 570). In that case we were concerned with a reasonable legislative determination that such individuals were not needy. The present case, in contradistinction, presents a very different question: May the Legialature deny all aid to certain individuals who are admittedly needy, solely on the basis of criteria having nothing to do with need? Today, we hold that it may not. As the chairman of the Constitutional Convention’s Committee on Social Welfare indicated, although the Legislature is given great discretion in this area, it cannot simply "shirk its responsibility which * * * is as fundamental as any responsibility of government” (Revised Record of the Constitutional Convention, vol III, p 2126 [1938]).

In view of our decision, we do not reach the plaintiffs’ equal protection attacks on the statute. The judgment appealed from should be affirmed.

Chief Judge Breitel and Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur.

Judgment affirmed, with costs.

       As amended, subdivision (a) of section 158 of the Social Services Law provides in pertinent part that: “Any person unable to provide for himself, or who is unable to secure support from a legally responsible relative, who is not receiving needed assistance or care under other provisions of this chapter, or from other sources, shall be eligible for home relief; provided, however that no person under the age of twenty-one years except a married person living with their spouse, living apart from a legally responsible relative shall be eligible for home relief unless a proceeding has been brought by or on behalf of such person to compel such legally responsible relative to provide for or contribute to such person’s support and until an order of disposition has been entered in such proceeding.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in in Relation to The Honorable Jacob D. Fuchsberg, Associate Judge of the Court of Appeals.
    Present: Honorable James D. Hopkins, Presiding.
    Honorable Arthur Markewich
    Honorable Joseph A. Suozzi
    Honorable T. Paul Kane
    Honorable Richard D. Simons

      On September 6, 1977 Chief Judge Charles D. Breitel ordered the convening of a Court on the Judiciary with respect to Jacob D. Fuchsberg, an Associate Judge of the Court of Appeals, as follows:

    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 22 of article VI of the New York State Constitution, I hereby order the convening of a Court on the Judiciary to investigate, hear, and determine matters concerning the conduct of the above-named Associate Judge of the Court of Appeals indicated in the covering letter addressed to the Presiding Justice of the Court on the Judiciary in the transmittal of this order, and I appoint and designate The Honorable James D. Hopkins (an Associate Justice of the Appellate Division, Second Judicial Department) as Presiding Justice of this Court on the Judiciary; I also appoint the following as Associate Justices of this Court on the Judiciary: The Honorable Arthur Markewich (Associate Justice of the Appellate Division, First Judicial Department); The Honorable Joseph A. Suozzi (Associate Justice of the Appellate Division, Second Judicial Department); The Honorable T. Paul Kane (Associate Justice of the Appellate Division, Third Judicial Department); and The Honorable Richard D. Simons (Associate Justice of the Appellate Division, Fourth Judicial Department).
    Charles D. Breitel (Signed)
    Charles D. Breitel
    Chief Judge of the State of New York

      On September 6, 1977 Chief Judge Charles D. Breitel sent the following letter to James D. Hopkins, as Associate Justice of the Appellate Division of the Supreme Court in the Second Judicial District, appointing Justices to the Court on the Judiciary.

    I am today convening, pursuant to the State Constitution (art VI, § 22, subd d), a Court on the Judiciary to evaluate the conduct of Associate Judge Jacob D. Fuchsberg, and to take appropriate action, if any, regarding his sales, purchases, and exchanges of New York City notes and Municipal Assistance Corporation bonds. I do so in consultation with and on the unanimous request of the other five Associate Judges of the court.
    Judge Fuchsberg has been advised of this action as has been The Honorable Lillemor Robb, Chairwoman of the State Commission on Judicial Conduct.
    The action is imperative, despite its evident personal and institutional painfulness and awkwardness, because of the critical necessity to maintain the morale and integrity of the court and to restore its standing in the confidence of the people of the State. The embarrassment permits of no avoidable delay. Inquiry directly by a constitutional Court on the Judiciary by independent counsel will provide maximum expedition and fairness to the public, the Court of Appeals, and each of its members, including Judge Fuchsberg.
    Unlike other Courts on the Judiciary convened in the past, the convening of this one projects no preliminary findings concerning the propriety or impropriety of the conduct involved, in fact or in appearance. The evaluation of the conduct involved and resolution of the issues, and other relevant or pertinent matters, are left to the investigation and determination of the Court on the Judiciary. The compelling basis for the action taken is the disclosure of the financial transactions in the public press, Judge Fuchsberg’s public statement in response, and an inquiry instituted on my behalf and that of the Acting Chief Judge in my absence, two days after the press disclosure of July 13, 1977.
    Many alternatives, all disagreeable, have been painstakingly explored. The delicacy of the issues and their impact on the highest court of our State, and all my colleagues on that court, and the inescapable constitutional responsibility placed on me as Chief Judge of the Court of Appeals, offer no better alternative than the one chosen in this unprecedented crisis.
    Following the unbroken practice when Courts on the Judiciary are convened, no details or available documents relating to relevant events are disclosed until and unless the Court on the Judiciary itself properly determines that release of confidentiality with respect to part or all of the material before it is appropriate.
    Therefore, I have appointed you, a Justice of the Appellate Division for the Second Department, as Presiding Justice of the Court on the Judiciary. Associated as members of the court I have appointed the following Appellate Division Justices:
    The Honorable Arthur Markewich, First Department
    The Honorable Joseph A. Suozzi, Second Department
    The Honorable T. Paul Kane, Third Department
    The Honorable Richard D. Simons, Fourth Department.
    A copy of my order is attached.
    Your readiness and that of your colleagues to undertake this delicate and difficult task is appreciated.
    Sincerely,
    Charles D. Breitel (Signed)
    Chief Judge of the State of New York

      On October 12, 1977, a motion to rescind the appointment of Harold R. Tyler as counsel to the court was denied in the following order:

    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 on the 12th day of October A.D. 1977.
    Present: Honorable James D. Hopkins, Presiding.
    Honorable Arthur Markewich
    Honorable Joseph A. Suozzi
    Honorable T. Paul Kane
    Honorable Richard D. Simons
    ORDER
    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
    A motion having been made on behalf of Jacob D. Fuchs-berg for an order rescinding the court’s appointment of Harold R. Tyler, Jr., as its counsel on the ground that such appointment contravenes section 22 of article VI of the New York State Constitution, and papers having been submitted in support of the motion, it is
    Ordered that the motion be, and the same hereby is, denied.
    Irving N. Selkin (Signed)
    Clerk of the Court on the Judiciary
    Attest:
    Irving N. Selkin (Signed)
    Clerk of the Court on the Judiciary
   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: