Justice Duane A. Hart of the Queens County Supreme Court should have sensed he was heading for a train wreck after the third mistrial of a contentious "unjust enrichment" and "constructive trust" dispute involving a father and son. On April 21, 2003, while the matter was on its fourth go-around, Judge Hart recessed at 1:00 P.M., and directed the parties to return the following day. An application made by one of the litigants, John Modica, to adjourn the matter an additional day (so that he could attend his son's championship soccer game) was denied.
Intending to reiterate his adjournment request, Modica later approached the Judge in a courthouse parking lot, but that effort was quickly rebuffed and security personnel were called to escort Mr. Modica away. An incident report prepared by the officer on duty noted that Modica was reprimanded and advised "not to approach any judge at any time," and further noted that Judge Hart had requested that no further action be taken against Modica.
The following morning, when the parties returned to the courtroom, Justice Hart appeared "angry and upset" and indicated to those present that he had been "accosted" the day prior and was considering finding Modica in contempt of court and having him imprisoned for 30 days or more. Although the Judge initially recanted the threat, when Modica's counsel requested that a formal record of the exchange be made, the Court responded as follows:
I find your client in contempt. He tried to intimidate the Court. I sentenced him to 30 days. I will suspend sentence pending the outcome of this trial. If 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. I find that his act in accosting me in the parking lot was contumacious conduct, if there ever was contumacious conduct. He was not supposed to do it. Let the record show I tried to let it go with a warning, but you and your associate decided to put it on the record, and I told you if you wanted to keep the matter going, fine. I will hold him in contempt and therefore I did.At day's end, the lawsuit was dismissed and the contempt finding vacated.
In response to a complaint later filed with the New York State Commission on Judicial Conduct, the Commission censured Judge Hart for his failure to exercise appropriate restraint and the inappropriate use of the Court's contempt powers. In its decision the Commission noted as follows:
We find respondent's misconduct particularly troubling notwithstanding that later that same day, at the conclusion of the trial, he corrected his injudicious decision by vacating the contempt finding. Several factors have persuaded us that a severe sanction is appropriate in this case.On appeal, the Court of Appeals of the State of New York affirmed the Commission's findings and sanction. It would appear that the Court's affirmance was predicated, in large part, upon Judge Hart's refusal to acknowledge his error or to express remorse for his conduct. In a telling coda to its decision, the majority noted, in pertinent part, as follows:
First, respondent continues to insist that his actions were appropriate and, indeed, asserts that in similar circumstances he would do the same thing again. Such intransigence 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. A judge's fail[ure] to recognize the inappropriateness of his actions or attitudes is a significant aggravating factor on the issue of sanctions.
Second, we note with concern respondent's conflicting testimony as to certain matters...as well as his tendency to accuse others of misdeeds in order to justify his own misbehavior. Respondent's claim that he tried to prevent the attorney from making a record because he knew the attorney wanted to make a "phony" record is entirely unsupported.
In sum, we find that respondent's conduct constitutes a significant departure from the role of a judge, who is required to be the exemplar of dignity and impartiality and to exercise the considerable powers of judicial office within the bounds of the law. We trust that respondent will learn from this episode and that, in light of this decision, he will modify his behavior appropriately....
A judge need not adopt a posture of obeisance before the Commission or this Court. A judge must, however, recognize wrongdoing in order to forestall the inevitable, unfortunate conclusion that, absent a harsher sanction, more of the same will ensue.In a dissent, the Honorable George Bundy Smith asserted that the formal rebuke which Judge Hart received (and the Court's affirmance of that sanction) was "uneven" and "at odds" with prior cases which involved judicial misconduct considerably more egregious. Judge Smith believed that Judge Hart's conduct did not rise to the level of prior reported cases of judicially directed detention, imprisonment, and other abuses of power which triggered the same penalty. We agree.
While Judge Hart may have acted impulsively, we believe the Court of Appeals may also have acted somewhat precipitously. Since Modica was never incarcerated, it's unclear how he was harmed, particularly since it was Modica that initiated the one-sided (ex parte) communication with the Judge (outside the presence of all counsel).
To some degree, once must respect Judge Hart's belief that his actions were justified and appropriate under the circumstances. Should he have been penalized for his refusal to acknowledge what others perceived as error? We think not. We believe that the Judge's behavior should have been assessed independently of any requirement that an apology or other expression of remorse be proffered. And, since this appears to have been an isolated incident or occurrence, we don't understand why Judge Hart was not given the benefit of the doubt.
After all, being a judge is often a matter of heart, isn't it?
For a copy of the Court of Appeals's decision in Matter of Hart, please click on the following link:
For a copy of the underlying decision issued by the New York State Commission on Judicial Conduct, please click on the following link:
For a copy of the Commission's press release (dated November 15, 2005), please click on the following link:
Note: After a formal hearing, the Commission is empowered to dismiss the complaint, privately caution the judge about the matter, publicly admonish, censure, or remove the individual from office.