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QUEENS---With a 5-2 decision, the Court of Appeals has upheld a determination by the state Commission on Judicial Conduct to censure a Queens judge for improper use of his summary contempt power.
Duane A. Hart, a justice of the Supreme Court in Queens County, had placed a litigant in contempt, claiming that the litigant had tried to intimidate the judge.
The court took particular note that Hart had refused to express remorse for his conduct and two justices of the state's highest court expressed concerns that the judicial commission was unevenly applying sanctions, saying that the commission was sanctioning some judges more severely than others. http://www.courts.state.ny.us/ctapps/decisions/may06/56opn06.pdf
Hart was assigned a civil matter, Modica v. Modica, concerning an ownership interest in a building, in April, 2002. In the next year, he presided over three non-jury trials in the matter, all of which resulted in mistrials. On April 16, 2003, the plaintiff's attorneys moved for Hart's recusal on the grounds that he had prejudged the case and asked for a stay of the action in the Appellate Division. Prior to that, the plaintiff's attorneys complained to the administrative judge that Hart had delayed the trial. Hart held the recusal motion in abeyance pending the trial and directed the parties to be present for trial on April 21, 2003.
Hart commenced the trial on that day and after about an hour, declared a recess and said he was adjourning the case until the next day because he had to fix his tire. The plaintiff, John Modica, requested a one-day adjournment so that he could attend his son's soccer game the next day. Hart denied the request.
A short time later after court was adjourned, Modica approached Hart in the courthouse parking lot, hoping to persuade him to grant the adjournment he had requested. After Modica said, "Excuse me, Your Honor-", Hart called to the court officer on duty and told her to arrest Modica.
Hart told court officers that Modica was a litigant who had approached his car. At Hart's request, Modica was released with a warning not to approach the judge at any time. He was not arrested or restrained with handcuffs.
The next morning, after Modica had advised his attorneys of the incident, his attorney asked to make a record of the incident. The judge said that if the attorney placed the matter on the record, he would hold Modica in contempt. After conferring with his client, the attorney stated that he had to make a record of the incident to protect himself and his client and Hart again stated if a record was made, he would hold Modica in contempt.
On the record, Modica's attorney stated that Modica had only intended to ask Hart to reconsider his request for an adjournment so that he could attend his son's soccer game. The judge held Modica in contempt and imposed a 30-day jail sentence, stating that Modica had "tried to intimidate the court". The judge then said that the sentence was suspended pending the outcome of the trial.
The commission found that the Modica's attorney had a right to make a record of his client's version of the parking lot incident and that the judge used the threat of contempt to intimidate the attorney from making that record.
On appeal, the Appellate Division, Second Department, affirmed Hart's refusal to recuse himself, saying that there was no basis for recusal and no proof of bias.
In its decision of censure, the commission said that the "enormous power of summary contempt may be exercised 'only in exceptional and necessitous circumstances' where the offending conduct 'disrupts or threatens to disrupt' the proceedings or 'tends seriously to destroy or undermine the dignity and authority of the court. Such exercise also requires strict compliance with mandated safeguards, including giving the accused a warning and opportunity to desist from the contumacious conduct and a reasonable opportunity to make a statement in his defense. Response did not comply with these well-established safeguards". http://www.scjc.state.ny.us/Determinations/H/hart.htm
The Court of Appeals concurred with the commission's conclusion that Hart had acted in excess of his authority, ruling that his exercise of summary contempt was a misuse of judicial power under the circumstances.
"Summary contempt should be employed where a court reasonably believes that prompt adjudication may aid in restoring order and decorum in the courtroom", the court held "It may not be employed retributively against a litigant because his attorney makes a record.
The decision read that "The record shows that the Judge angrily took the bench the morning after the incident; his own words in issuing the contempt order speak volumes about his deportment and temper: "[i]f I hear so much as a muttering from him, if I think that he's making a face at me, if I think he's doing anything, he shall be remanded by Officer Battle forthwith, and he shall spend every bit of 30 days as a guest of the City of New York."
While the Court said they were unanimous as to the issue of violation, it divided as to whether censure or admonition is the appropriate remedy.
"As we have repeatedly stated, members of the judiciary are held to higher standards of conduct than members of the public, and the effects of a judge's conduct on public confidence in judicial temperament and character must be weighed. Applying these principles, we agree with the Commission that though the Judge's conduct did not rise to a level warranting removal, it was unquestionably
serious conduct deserving the weighty sanction of censure.
"As the Commission observed, Judge Hart has failed to this day 'to recognize that the awesome contempt power should be exercised only with appropriate restraint and within the carefully mandated safeguards. A judge's 'fail[ure] to recognize the inappropriateness of his actions' . . . is a significant aggravating factor on the issue of sanction".
The two dissenters in regard to sanction, Justices George Bundy Smith and Susan Read, wrote that "When the Commission admonishes a judge who jails a lawyer because he cannot produce a witness in two minutes and admonishes another judge who permits a person to remain handcuffed during a luncheon recess, but requires censure for this Respondent, who found a person in contempt but vacated the contempt without further action, the law is being applied in an uneven fashion," the dissenters said, citing previous cases of judicial misconduct. 5-06-06
© 2006 North
Country Gazette
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