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QUEENS---A Queens judge who placed a litigant in contempt, claiming that the litigant had tried to intimidate the court has instead been found to have engaged in judicial misconduct himself.
Duane A. Hart, a justice of the Supreme Court, Queens County, has been censured, one step short of removal from the bench.
When a litigant's attorney in Queens Supreme Court insisted on making a record of an out-of-court encounter between his client and the judge, the judge improperly cited the client for contempt and imposed a 30-day jail sentence.
The commission found that Hart "punished the litigant for his attorney's lawful appropriate advocacy" by holding him in contempt, in violation of the ethical standards. The commission found that the judge's "intemperate, ill-considered actions" constituted "an abuse of the summary contempt power". Although Hart vacated the contempt finding at the end of the trial, the commission concluded that a severe sanction was warranted by several factors, including the judge's continued insistence that "in similar circumstances he would do the same thing again".
The commission found that Hart's conduct in its totality was "a significant departure from the role of a judge who is required to be "the exemplar of dignity and impartiality".
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 11-17-05
© 2005 North
Country Gazette
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