A New Jersey appellate court has vacated a contempt finding against a man who refused to remove his knit ski cap in Egg Harbor City, N.J., municipal court for religious reasons.
The adjudication of contempt, which carried a $50 fine, was procedurally defective because Egg Harbor City Municipal Court Judge William Cappuccio failed to adhere to procedural requirements in R. 1:10-1, Appellate Division Judges Paulette Sapp-Peterson and Marie Lihotz said in an order made public Aug. 15. And a remand of the case to municipal court, signed by Atlantic County Superior Court Presiding Judge Michael Donio, was also reversed because, Sapp-Peterson said, “the interest of justice is not served under this record by a remand.”
“We do not believe that wearing of what the municipal judge called a ‘ski cap’ during the proceeding compelled invocation of the extraordinary judicial contempt powers to summarily adjudicate defendant’s conduct. A contempt proceeding on notice and an order to show cause was available to deal effectively with defendant’s conduct, if warranted,” Sapp-Peterson said.
The appeal was brought by Alexander Shalom of the American Civil Liberties Union-New Jersey, who maintained that Matthew Graham’s freedom of religion was violated even though the defendant, who calls himself an “orthodox Christian,” is not part of any organized religious group.
The case stems from Graham’s October 2013 appearance in Cappuccio’s court on a disorderly persons charge relating to a dispute with a neighbor. Cappuccio dismissed that charge but held Graham in contempt for refusing to remove the woolen cap, despite Graham’s insistence that his “orthodox Christian” religious beliefs required him to keep his head covered.
Graham appealed to the Law Division of the Superior Court of New Jersey and requested a waiver of the filing fee and transcript costs. A Superior Court staff member denied the waiver in a letter dated Oct. 10, 2013. Graham wrote back Oct. 24, explaining that he has no job or car, receives food stamps and has $10,000 in student loan obligations and $500 in medical bills.
Donio wrote back Oct. 29, stating, “It seems to me that your contempt was merely for not taking off your hat in a court of law when requested to do so by the judge and court staff. To me that is not something that should entitle you to a free lawyer or a free transcript.”
“You made a conscious decision in open court to defy a court order by not taking off your hat like everyone else does in a courtroom. You chose to do that on your own volition. Therefore, you can choose to hire a lawyer to fight this if you want. The state of New Jersey is not going to provide you with a free transcript and/or a free attorney,” Donio said.
Graham then obtained representation from ACLU attorney Shalom, who requested a final order Nov. 14. Donio provided it Nov. 22, but gave a different reason for denying indigent status. The judge wrote, “The court does not believe the defendant is subject to a sentence of consequence which would result in deprivation of liberty even if found guilty on appeal for his alleged contempt in the presence of the municipal court for failing to take off his hat.”
Shalom appealed the refusal to hold an indigency hearing and the Appellate Division ordered that a hearing be held. Ultimately, Graham received a transcript without charge and was allowed to appeal the contempt finding. On appeal, Donio did not address the religious freedom issue but he did find that Cappuccio failed to follow proper procedure for issuing the contempt citation. Instead of dismissing the finding of contempt, Donio sent the case back to Cappuccio to explain why he held Graham in contempt. Shalom then brought a second appeal in the case.
The appeals court reversed the finding of contempt and the remand to municipal court based on the state’s concession that Cappuccio failed to comply with Rule 1:10-1. That rule provides that a judge conducting a judicial proceeding may adjudicate contempt summarily without an order to show cause if the conduct has obstructed the proceeding or would have obstructed the proceeding if continued; the conduct occurred in the judge’s presence and was seen or heard by the judge; the character of the conduct or its continuation after an appropriate warning demonstrated its willingness; immediate adjudication was necessary to permit the proceeding to continue in an orderly and proper manner; and the judge has given the alleged contemnor an immediate opportunity to respond.
Shalom said in an ACLU press release that, “given the judiciary’s scarce resources, it is disappointing that we needed to twice argue before the Superior Court and twice file appeals with the Appellate Division in order to vindicate basic principles of due process and religious freedom. But, in the end, we’re pleased that the courts properly protected Mr. Graham’s rights.”
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