(dissenting in part and concurring in the result)—The remarks of the respondent directed to the city officials of Seattle, the prosecuting attorney, and the superior court judge of King County are inexcusable. I believe, however, that this conduct does not in itself justify disbarment.
The respondent was not acting solely in the capacity of an attorney and officer of the court. He was also in the status of a litigant against whom process had been directed in a court proceeding. I am satisfied from the record that the respondent believed his rights as an individual and as a duly elected municipal court judge were being violated, that the city officials of Seattle and the Superior Court of King County were exceeding their jurisdictions, and that the court order obtained by the prosecuting attorney ousting the respondent from office was void and of no effect. The order of ouster was obtained after his conviction of a felonious offense and pending his appeal to this court. (The judgment of conviction was later reversed and a new trial was granted by this court. State v. Simmons, 59 Wn. (2d) 381, 368 P. (2d) 378.) The order entered in the quo warranto proceeding was based on RCW 9.92.120:
“The conviction of a public officer of any felony or malfeasance in office shall entail, in addition to such other penalty as may be imposed, the forfeiture of his office, and shall disqualify him from ever afterward holding any public office in this state.”
It was the respondent’s contention that the above statutory provision for forfeiture of his office could not become effective until the final disposition of his appeal. Although subsequent events proved that the respondent was wrong, they also established there was room for an honest difference of opinion as to his belief that the ouster order was invalid. In State ex rel. Zempel v. Twitchell, 59 Wn. (2d) 419, 367 P. (2d) 985, decided in January, 1962, two dissent*101ing members of this court were of the opinion that such an ouster order issued against a public officer would not be effective during the pendency of an appeal from his conviction, as it would constitute a denial of such officer’s constitutional guarantee of right of review by this court.
At the time of the utterances by the respondent, for which the majority have disbarred him, there was room for him to believe that the municipal officers of Seattle and the Superior Court of King County acted without authority in vacating his office and ousting him from his position pending his appeal to the Supreme Court of this state.
In my opinion, these facts are mitigating circumstances that should be considered by this court in the imposition of punishment for the utterances respondent directed toward the municipal officers of Seattle, the prosecuting attorney, and the superior court judge of King County at the time in question.
In view of these mitigating circumstances, I believe six months’ suspension from the practice of the law would be sufficient punishment to impose upon the respondent for such conduct considered independently of the other charges against the respondent.
The majority do not reach the consideration of respondent’s conduct concerning Mrs. Betty Adams. The impropriety of the respondent’s conduct in this regard, as a lawyer and a municipal court judge, is more serious. The out-of-court adjustment of the traffic ticket when considered with his subsequent conduct with Mrs. Adams, although it may have been short of the commission of a felony, demonstrated dishonesty and his unfitness to practice law. It is this misconduct that would justify the respondent’s disbarment.
Rosellini, J., concurs with Hunter, J.
December 7, 1964. Petition for rehearing denied.