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Judges who abuse their summary contempt power are apparently coming into sharper focus by a New York Commission on Judicial Conduct that is clearly growing tired of warning jurists to stick to the law. In two determinations released Tuesday in which the judicial watchdog agency reprimanded judges in Queens and Nassau counties for misusing or exploiting their contempt power, commission members suggested it is time to take a hard line against bullying judges, and expressed surprise that some jurists have not gotten the message despite several cases where judges have been chastised by the panel. “Given the frequency of our public discipline for this unique abuse of judicial power, it is a mystery to me how any judge in New York could ignore the well-established rules that are fashioned to restrict and even defuse imposition of summary punishment,” Commissioner Richard D. Emery wrote in Matter of Hart and Matter of Lawrence, separate cases where he concurred with the majority of his colleagues but wrote separately. Emery, a partner with Emery Celli Brinckerhoff & Abady in Manhattan, stressed that judges should use their “nuclear option” only when clearly authorized by the law. Tuesday’s determinations involved Supreme Court Justice Duane A. Hart of Queens, who was censured, and Nassau Family Court Judge Richard A. Lawrence, who was admonished. Records reveal that Hart remained combative throughout the closed hearing, refused to acknowledge wrongdoing and — had he not rescinded a contempt order before the target was hauled off to jail — could have been facing removal rather than a public censure. On the other hand, records show, Lawrence appeared contrite and promised to scrupulously follow the statute in the future — prompting three commissioners to argue that the imposition of a public reprimand in his case was too severe. Together, the cases suggest a growing concern over the misuse of contempt powers, and a growing willingness of the commission to discern misconduct from legal error. The Court of Appeals recognized this year in Matter of Feinberg, 5 NY3d 206, that legal error and judicial misconduct “are not necessarily mutually exclusive,” upholding what some judges have complained is an increasing tendency of the commission to second-guess their judicial determinations. Hart, according to the determination, held a litigant in contempt because his attorney attempted to make a record he had a right and responsibility to make. The sanction is rooted in a protracted and contentious civil action in which Hart presided over three trials, all ending in mistrials. The plaintiffs attorneys, Max Goldweber of Mineola and Leland Greene of Garden City, had moved for Hart’s recusal, arguing that the judge was biased. They also asked for a stay from the Appellate Division and lodged a complaint with the administrative judge. Hart held the recusal motion in abeyance and directed the parties to appear before him for trial on April 21, 2003, a week after Goldweber and Greene moved for his recusal. About an hour into the trial, Hart declared a recess until the next day so he could fix his car tire. The plaintiff, John Modica, then requested a one-day adjournment so he could attend his 12-year-old son’s soccer tournament. Hart denied the request. After court was adjourned, Modica, a single father, approached Hart in the parking lot, hoping to persuade the judge to reconsider and permit him to attend his child’s sporting event. Hart summoned a court officer and told her to arrest Modica. Modica was released with a warning to stay away from the judge, and reported the incident to his attorneys. The next morning, Greene asked to make a record of the incident. Hart denied the request, and warned the attorney that if he persisted the client would be held in contempt. Greene, however, continued to make his record, and his client was promptly hit with contempt and sentenced to 30 days in jail. Before the day was out, and before Modica was taken into custody, Hart withdrew his contempt order. ‘INTEMPERATE’ ACTIONS Regardless, the commission deemed the incident a serious transgression, exacerbated by the judge’s refusal to recognize that he had done anything wrong and insistence that, given the opportunity, he would do the same thing again. “Respondent’s intemperate, ill-considered actions were a totally inappropriate response to Mr. Greene’s lawful advocacy and constitute an abuse of the summary contempt power, warranting public discipline,” the commission said in the main opinion. It said Hart’s “intransigence” in insisting that in similar circumstances he would act similarly “suggests that respondent still fails to recognize that the awesome contempt power should be exercised only with appropriate restraint and within the carefully mandated safeguards.” Two commissioners wrote concurring opinions — Emery and Raoul Lionel Felder, a Manhattan attorney. Felder, in his concurrence, said Hart’s contention that he wanted to prevent plaintiffs counsel from making a “phony record” amounted to a “sheer invention by respondent to create the predicate event in order to explain the inexplicable: namely, holding the litigant in contempt because his lawyer had the temerity to insist on placing his client’s position on the record … We deal here with legal error and more.” He also took issue with Hart’s deportment at the disciplinary hearing. The commissioner acknowledged that the agency’s prosecutor, Vickie Ma, called Hart a “bully” at least three times. While Felder said the use of the word “bully” was strong and would not have been his choice, Hart’s “own actions, the record of the hearing and even respondent’s angry, confrontational deportment before the Commission breathe life into such an appellation.” Emery, in his concurrence, said that instead of offering a reasonable explanation for his behavior, Hart “has chosen to obfuscate, deny and provide retrofitted, post hoc rationalizations for misconduct he insists he would repeat.” “Ordinarily, this would be grounds for removal in a case as serious as this one,” Emery said. “But because respondent vacated his ill-conceived contempt finding before the plaintiff suffered more than the court’s improper opprobrium, I conclude censure is appropriate.” Hart said Tuesday in a telephone interview that he was reacting to a litigant who was “stalking and accosting a judge.” He had told the commission at some point that the litigant had tapped him on the back. But the commission said Hart provided “varying testimony” and evinced a “tendency to accuse others of misdeeds in order to justify his own behavior.” A ‘POLITICAL’ COMPLAINT The judge’s current attorney, Lawton W. Squires of Herzfeld & Rubin in Manhattan, said the commission’s description of the incident in the parking lot is factually inaccurate and its determination will be appealed. Squires said the complaint was “political” and was generated by a “disgruntled” litigant and attorney. He also said that since Modica was never taken into custody, the contempt citation was never consummated and should not form the basis for a disciplinary action. “I think the findings of fact of the committee are not supported by the testimony of the court officer,” Squires said. “The court officer testified that … the litigant walked past a secure parking lot, accosted Judge Hart and was agitated and nervous. He was a dissatisfied litigant who improperly approached a judge out of court.” Squires also said “it is not entirely accurate” that Hart cited the litigant for contempt because his attorney attempted to make a record. “If you understand contempt, and I’ve been a litigator since 1983, contempt is not finalized until the person is placed in jail,” Squires. “This was basically a cautionary thing, a warning.” Commission Administrator and Counsel Robert H. Tembeckjian said the commission stands by the findings of the referee, John A. Monteleone, and the factual accuracy of the determination. ‘HASTY’ CONDUCT The Lawrence matter split the commission 8-3. That was a case where Judge Lawrence of Family Court in Nassau County summarily held a litigant in contempt, apparently for repeatedly sighing, fidgeting, and turning his back on the court. Lawrence initially imposed a five-day sentence on the litigant, but increased it to 10 and then 12 days after the man or his attorney attempted to argue. The man was handcuffed and placed in custody for several hours before he was released by another judge. Lawrence admitted that he failed to warn the litigant that his conduct could result in a contempt citation, and neglected to afford either the litigant or his attorney an opportunity to make a statement. The commission said his conduct was “unnecessarily hasty,” lacking in “procedural justification” and deserving of a public sanction. “The exercise of the enormous power of summary contempt requires strict compliance with mandated safeguards, including giving the accused an appropriate warning and an opportunity to desist from the supposedly contumacious conduct,” the commission said. “Respondent did not comply with these well-established procedural safeguards … “ Emery, in concurrence, noted that the commission has disciplined judges on at least four occasions — six, including Hart and Lawrence — for misuse of contempt power. “Too often this commission confronts abuse of the summary contempt power,” Emery wrote. “Some judges repeatedly ignore the basis and, even more frequently, the procedures on which any such finding and sanction may be legally premised. It is the essence of the statute, case law and rules that the potential contemnor must be warned and permitted to refrain from the behavior before the contempt sanction is imposed.” Chairman Lawrence S. Goldman, an attorney in Manhattan, dissented in an opinion joined by commissioners Christina Hernandez, a social worker, and Alan J. Pope, a partner at Pope, Schrader & Murphy in Binghamton. They argued that Lawrence’s “legal errors” were “not so blatant that they demonstrate lack of competence in the law and thus constitute misconduct.” The dissenters would have issued a private letter of caution. Ma also prosecuted the Lawrence matter. Lawrence was represented by Robert J. Miletsky of Manhattan. “The commission takes abuse of the contempt power very seriously,” Tembeckjian said.

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