New York State Commission on Judicial Conduct

In the Matter of the Proceeding Pursuant to Section 44, in Relation to Duane A. Hart, Justice

CONCURRING OPINION BY MR. FELDER

The Court of Appeals has indicated its approval of the proposition that legal error and misconduct are not mutually exclusive. We deal here with legal error and more. Conduct that is not legal error or misconduct can still be especially hurtful and wrong, just as wounding words can inflict pain and embarrassment and yet fail to be actionable as defamation. Such conduct, although beneath the radar screen of actionable misconduct, can nevertheless help in arriving at a determination as to whether or not misconduct has occurred in an otherwise ambiguous scenario. It can be the music that helps define the lyrics. Truth is often as elusive as it is fragile, so that it needs all the help that is available to a searcher. Moreover, respondent's unjustifiably hostile attitude in this proceeding helps us determine some of the disputed facts.

The inferences that may fairly be drawn from the facts here are of assistance in examining this troubling record. The events that created the present complaint arose over two partial days of court appearances in the Modica case, which commenced on April 21, 2003.

Prior to that date, the attorney for the plaintiff, John Modica, had lodged a complaint with respondent's Administrative Judge, On April 2l, Mr. Modica asked respondent for a one-day adjournment of the next day's proceedings for a legitimate, even compelling reason: He was a single parent and his 12-year old son was scheduled to play in a soccer tournament. Respondent denied the request for a modest adjournment and, in testimony during the investigation, candidly linked his refusal to the attorney's prior complaint: "In fact, if they hadn't complaint [sic] to the Administrative Judge, I'd have let [Mr. Modica] see the soccer match. I didn't care. It was a non-jury trial. I got things to — I had other things to do" (Comm. Ex. 3. p. 81).

After little more than an hour of testimony (although the parties had arrived as directed at 9:30 AM, respondent took the bench around 11:30 AM), respondent cancelled the remainder of the court day. At the proceeding, and in his testimony, respondent gave various reasons for his early departure. He told the attorneys it was because he had "car trouble" (Tr. 38, 103). At the hearing, he testified it was because he had to visit his father (Tr. 223). He then testified that he "may have" told the attorneys the reason was "to fix a tire" (Tr. 234), but if he did, that was accurate because he got his tire fixed and saw his father (Tr. 237). At any rate, according to the record (uncontradicted by respondent), he adjourned the trial around 1:00 PM.

After court adjourned, as respondent, whose car was near the entrance of the judges' parking lot, began to drive out of the lot, Mr. Modica recognized him and approached the car, presumably to discuss the adjournment. At this point, respondent called over the guard, Geralyn Martucci, and told her to arrest Mr. Modica ("Could you arrest this man?" [Tr. 169]). She in turn called her lieutenant, and when the lieutenant arrived, respondent withdrew his demand for Mr. Modica's arrest. Respondent denies telling anyone to arrest Mr. Modica; he maintains that he asked the guard to "secure" Mr. Modica and then told the lieutenant who arrived on the scene, "Don't arrest him. Just scare the blank out of him and let me go on my way" (Tr. 224). If respondent did not initially give the order for Mr. Modica's arrest, there seems to be little reason why he would tell the lieutenant not to "arrest him." Further, at the argument before the Commission, respondent said, "I know Geri [Martucci], I knew Geri's father" (Oral argument, p. 34), which only underscores that Officer Martucci would have little motivation to give testimony that would be unhelpful to respondent.

Towards the end of the Commission hearing, for the first time, respondent said, "[Mr. Modica] tapped me on the back" (Tr. 245). Then he stated, "He could've tapped me. I don't remember if he tapped me," but acknowledged that prior to the date of the hearing he did not think he had ever told anyone about being tapped on the back (Tr. 24647). Later he said that Mr. Modica "may have tapped me on the shoulder to get my attention" or "may not have tapped me," and then indicated that Mr. Modica may or may not have asked him for an adjournment in the parking lot (Tr. 255, 256-57).

Into this maze of conflicting facts and uncertain testimony, two troubling elements are added to the mix.

First, at the argument before the Commission, respondent for the first time mentioned spending some hours dealing with the situation in chambers prior to court convening on April 22, and respondent insisted that he wanted to keep Mr. Modica's attorney from making a "phony record."

Respondent's new assertion that on April 22 there were as much as two hours of conferences on the subject of contempt prior to his taking the bench is, to say the least, surprising. Such conferences were never previously mentioned by respondent, nor is there any indication on the record that they occurred. The unavoidable conclusion is that his description of a lengthy meeting in chambers, from which he deduced that the plaintiff's attorney wanted to make a "phony record," was a sheer invention by respondent to create a 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.

The second troubling aspect is respondent's attitude and deportment both at the hearing and at the argument before the Commission. Respondent has said he believes he was unfairly treated by the Commission. While he is entitled to that view, his own words and demeanor, as depicted in this record, are revealing.

Typical of the atmosphere engendered by respondent at the Commission hearing was the following colloquy between Commission counsel and respondent:

Q - Is it true today?

A - That - sir, you're asking me a hypothetical - no, sir, you're not that good to ask me a hypothetical." (Tr. 239)

In the argument before the Commission, Commission counsel at least three times referred to respondent as "a bully." While this would not normally be in my lexicon to be used in describing a jurist — any jurist — respondent's own actions, the record of the hearing and even respondent's angry, confrontational deportment before the Commission breathe life into such an appellation:

Q - That's because you had nothing to do the next day?

A - Sir, but what does this have to do with contempt? (Tr. 241)

After this colloquy at the hearing, respondent was admonished by the Referee. Respondent then testified:

A - I an- excuse me- they were inappropriate questions that called for a "Yes" or "No" answer- Ms. Ma got angry because I answered her questions that demanded a "Yes" or "No" answer, "Yes" or "No." Excuse me, and since you want to refer to the record, I would implore the Commission to go back and check Ms. Ma's reason that I'm down here because she didn't like the fact that I answered "Yes" or "No" questions, "Yes" or "No." (Tr. 248)

In this maelstrom of respondent's contradictions and confrontational behavior, there are detours leading to absolute illogic.

At the hearing, respondent was asked:

Q - Were they trying to set up an appeal based upon what their activities were, in your opinion?

He responded:

A - I have no idea, but based on Mr. Goldweber's reputation, I could only believe he had something in his mind. (Tr. 220-21)

For a judge to believe an attorney had something in his mind based on what he believed to be his reputation is beyond comment.

At the Commission argument, respondent also offered the novel, if not illogical, assertion that he never held Mr. Modica in contempt at all since after holding Mr. Modica in contempt, he vacated the contempt:

MR. GOLDMAN: So, you think because you vacated, essentially it was proper. Had you held him in contempt and not vacated, would you have acted improperly, procedurally?

THE RESPONDENT: ..But, again, as a matter of law because I vacated, I didn't hold him in contempt. That's the problem. I mean, I'm charged with holding somebody in contempt when I vacated the contempt. (Oral argument, pp. 45-46)

Instead of punishing the litigant for something the lawyer said, an attempt could have been made to give the litigant a chance to address respondent's pervasive theme: "Is he sorry for what happened the prior day in the parking lot?" Respondent has indicated that if Mr. Modica had merely said he was "sorry" for what occurred, he would not have held him in contempt, yet when asked to explain why he never said that to the litigant, his response was merely that it would have been wrong to speak to a litigant who was represented by counsel:

MS. DIPIRRO: Why didn't you go right to the defendant. Mr. Modica, and say -

JUDGE KLONICK : - Right.

MS . DIPIRRO: - just tell me you're sorry? It could have been over.

THE RESPONDENT: You know. I had a discussion like that with one of my colleagues. He was represented by counsel. Last time I checked, once he was represented by counsel - was supposed to go through the counsel.

MS. DIPIRRO: Well, it could have made it so much easier if you just said, "Are you sorry?"

THE RESPONDENT: But, ma'am, he was represented by counsel."

(Oral argument, p. 56)

However, it was pointed out to him that his reasoning was inconsistent:

MR. FELDER: But didn't you also say to him that you're going to have 30 days at the expense of the city of New York?

THE RESPONDENT: Yes, if he did anything else. (Oral argument, p. 56)

It is clear that respondent never told the litigant on the record, directly or through his attorney, that a simple apology would have sufficed to avoid a holding of contempt. Of particular significance is the fact that when respondent was specifically asked:

MR. FELDER: And if the same events happen again today, you would do the same thing today?

his response was:

THE RESPONDENT: Absolutely. (Oral argument, p. 49)

At the center of what occurred was that respondent initially punished a litigant by denying him a reasonable adjournment simply because the litigant's attorney had made a complaint about respondent. While a request for an adjournment is within a judge's discretion, here the denial was retaliatory and all the more unreasonable in the face of respondent's own decision to cut short the day for personal reasons. Then, respondent reacted to a trivial incident outside the courtroom, in the parking lot, by blowing the incident all out of proportion the next day. He held the litigant in contempt because his lawyer merely tried to do what it was his obligation as a lawyer to do - make a record and present his client's position. Any disruption in the courtroom caused by the prior day's incident in the parking lot was because of respondent's own actions.

Section 755 of the Judiciary Law provides as to contempt that "Where the offense is committed in the immediate view and presence of the court, or of the judge or referee, upon a trial or hearing, it may be punished summarily." The Second Department Rule Section 701.2 reads as follows:

(a) The power of the court to punish summarily any contempt committed in its immediate view and presence shall be exercised only in exceptional and necessitous circumstances, as follows: (1) where the offending conduct disrupts or threatens to disrupt procedings, actually in progress; or (2) where the offending conduct destroys or undermines or tends seriously to destroy or undermine the dignity and authority of the court in a manner and to the extent that it appears unlikely that the court will be able to contently to conduct its normal business in an appropriate way, provided that in either case the court reasonably believes that a prompt summary adjudication of contempt may aid in maintaining or restoring and maintaining proper order and decorum.

(b) Wherever practical, punishment should be determined and imposed at the time of the adjudication of contempt. However, where the court deems it advisable, the determination and imposition of punishment may be deferred following a prompt summary adjudication of contempt which satisfies the necessity for immediate judicial corrective or disciplinary action.

(c) Before any summary adjudication of contempt the accused shall be given a reasonable opportunity to make a statement in his defense or in extenuation of his conduct. (Emphasis added.)

Respondent's misconduct cascaded. Initially, in retaliation for making a complaint to his superiors, respondent penalized the litigant. He then punished the litigant because his attorney sought to make a record and, indeed, he tried to dictate what the attorney should place on the record. Worse yet, the finding of contempt was itself patently without merit. Compounding this misconduct are respondent's conflicting testimony and his complete lack of contrition, or even recognition of his misconduct, which are aggravating factors in considering an appropriate sanction. See, Matter of Bauer, 3 NY3d l58, 165 (2004); Matter of Shilling, 51 NY2d 397, 404 (1980).

For these reasons, I concur that censure is the appropriate remedy. It should not go unnoticed that the referee, Judge Monteleone, performed his services admirably in a proceeding that was obviously -and unnecessarily- confrontational and nasty due to respondent's pronounced hostility.

Dated: October 20, 2005