(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued October 22, 2001 -- Decided January 29, 2002
Verniero, J., writing for a unanimous Court.
In this appeal, the Court considers whether the trial court erred in imposing jail sentences of varying
lengths on the same litigant after finding him in contempt on three separate occasions.
The City of Paterson and its Chief of Police (collectively, plaintiffs) filed suit seeking temporary and
permanent restraints against the defendant as a result of his disruptive and abusive conduct directed at plaintiffs'
employees. Tactics of intimidation used by the defendant against plaintiffs' employees included loud, insulting
language, the filing of complaints and criminal charges against them, and obtaining their home addresses.
Temporary restraints were entered against the defendant prohibiting him from contacting or communicating with
plaintiffs' employees at their home addresses, going to employees' homes, obtaining or publicizing the home
addresses of the employees, or personally serving papers of any kind on employees. The temporary restraints
required also that defendant advise the office of Corporation Counsel two hours before he entered any City building,
and restrained him from abusive or disruptive conduct while in public buildings. The defendant reacted to the
temporary restraints by filing additional complaints, including one against the Mayor and one against the judge who
issued the temporary restraints and his law clerk. The judge recused himself from the case and it was reassigned to
a new judge. The court thereafter restrained defendant from filing further criminal complaints against any person
involved in the litigation without first obtaining a probable cause finding from a neutral judicial officer.
Next, defendant filed a motion seeking to disqualify the new judge in the matter and the City's attorney.
The judge denied those motions. The judge explained to the defendant that he does not have the right to file
criminal charges, threaten, and file ethics charges against a judge because he does not like the judge's rulings. The
judge noted further that attempts at intimidation could result in criminal charges.
Prior to the start of trial, defendant served the City's attorney with a subpoena to appear as a witness and
again filed a motion to disqualify the judge. In support of his motion to disqualify the judge, defendant accused the
judge of bias, corruption, and conspiring to fix the case. Defendant filed numerous letters and certifications
reiterating these accusations. Defendant also personally presented a subpoena to the judge, explaining that the judge
was his witness now and could no longer adjudicate the matter. The judge refused defendant's requests to recuse
himself from the case.
The trial of plaintiffs' action in the Chancery Division began on April 20, 1998, and concluded on April
29, 1998. On the first day of trial, the judge charged defendant with contempt in the face of the court, pursuant to
Rule 1:10-1. This was the first of three contempt charges against the defendant. In explaining the Rule 1:10-1
charges to the defendant, the judge summarized the letters and certifications sent or filed by the defendant, including
letters to the judge and the City's attorney and certifications filed in support of disqualification motions. The court
relied on a total of twelve documents. The court deferred adjudication of the charges and imposition of punishment
until the trial was concluded. During the pendency of the trial, however, the judge inquired of the defendant
whether he wanted to address the contempt charges before the trial concluded. The defendant elected to wait until
the end of the trial. At the trial's conclusion, the judge reiterated the basis for the contempt charges and provided
the defendant with an opportunity respond. After hearing defendant's arguments, the judge issued a certification
and order of contempt, and sentenced defendant to sixty days in the county jail.
The second adjudication of contempt arose from an application by the City's attorney in which she
claimed that the defendant had violated numerous paragraphs of the first judge's temporary restraining order.
Witnesses testified on April 20 and 21, 1998, about defendant's conduct. Defendant testified on his own behalf and
denied the violations. Following that testimony, the judge issued an order to show cause pursuant to Rule 1:10-2.
On June 22, 1998, a different judge presided over the contempt proceedings. That judge did not hear the witnesses,
but relied on the testimony of the witnesses contained in the transcripts of the proceeding held in April. The judge
found that defendant violated various paragraphs of the temporary restraining order, and sentenced the defendant to
thirty days in the county jail.
The third contempt finding was also pursuant to Rule 1:10-2, and arose from an application made by the
City's attorney. The basis of that application was that defendant made intimidating remarks in the courtroom to the
wife of a police officer, who was a witness at the trial, and made similar comments to the City's attorney. A third
judge conducted the proceeding in respect of this second Rule 1:10-2 proceeding. The State called numerous
witnesses who testified before the third judge. The judge found defendant guilty of contempt for attempting to
intimidate the wife and the City's attorney, and sentenced the defendant to sixty days in the county jail.
The Appellate Division affirmed all three contempt dispositions.
HELD: The Court affirms the Appellate Division in respect of the Rule 1:10-1 action and the second Rule 1:10-2
action. The Court reverses the order of contempt in respect of the first Rule 1:10-2 action.
1. Rule 1:10-1 governs contempt that is committed in the court's presence. Here, defendant's repeated
attempts to disqualify the trial judge without foundation, coupled with his baseless efforts to subpoena the judge to
cause his recusal, occurred in the presence of the judge and were willful. The defendant was permitted the
appropriate opportunity to respond to the charges. Defendant's conduct obstructed the pre-trial proceedings and, if
left unchecked, would have obstructed the trial itself. Therefore, the trial court did not err in the adjudication of
contempt under Rule 1:10-1. Although the judiciary's summary contempt power should be exercised sparingly and
in the rarest of circumstances, this is such a rare case. (Pp. 22 to 33).
2. Rule 1:10-2 governs contempt proceedings other than proceedings under Rule 1:10-1. Rule 1:10-2
contemplates that when the matter is heard by a judge other than the one who instituted the proceedings, the alleged
contemnor will be permitted to cross-examine the State's witnesses and otherwise put on a defense before the judge
who actually adjudicates the matter. That did not occur in the first Rule 1:10-2 proceeding. Instead, the judge who
adjudicated the matter relied exclusively on the testimony of the prior witnesses contained in the transcript of the
proceedings conducted before the original judge. Further, although defendant had the opportunity to cross-examine
those witnesses when they gave their testimony, he received inadequate notice for purposes of preparing an
effective cross-examination on the contempt charge. When the matter was transferred to the subsequent judge for
adjudication, defendant should have been given the opportunity to confront and cross-examine the State's witnesses
before that judge. In the absence of that critical safeguard, the court was unable to evaluate fully the demeanor and
credibility of the witnesses. Because the right to confrontation and cross-examination was abridged in the first Rule
1:10-2 proceeding, the Court holds that the adjudication of contempt resulting from that proceeding cannot be
sustained. (Pp. 33 to 36).
3. The second Rule 1:10-2 proceeding had no procedural flaw. The State presented its witnesses before the
court that actually adjudicated the contempt, the defendant had notice of the hearing, he was permitted to cross-
examine all witnesses, and he had adequate time to prepare a proper defense. Further, the Court finds that the
defendant's conduct was contumacious. Defendant's second adjudication of contempt under Rule 1:10-2 was
proper. (Pp. 36 to 40).
The judgment of the Appellate Division is AFFIRMED IN PART, and REVERSED IN PART. The
matter is REMANDED to the trial court for execution of the sentences and such further proceedings as are
consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA and
ZAZZALI join in JUSTICE VERNIERO's opinion.
SUPREME COURT OF NEW JERSEY
A-
64 September Term 2000
VINCENT AMORESANO, CHIEF OF
POLICE, THE CITY OF PATERSON,
and PASSAIC COUNTY
PROSECUTOR'S OFFICE,
Plaintiffs,
v.
BERNARD LAUFGAS,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BERNARD LAUFGAS,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BERNARD LAUFGAS,
Defendant-Appellant.
Argued October 22, 2001 -- Decided January 29, 2002
On appeal from the Superior Court, Appellate
Division.
Bernard Laufgas argued the cause pro se.
Richard W. Berg, Assistant Attorney General,
argued the cause for respondent (John J.
Farmer, Jr., Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
VERNIERO, J.
The issues raised in this appeal involve the judiciary's
summary contempt power. We are called on to determine whether
the trial court erred in imposing jail sentences of varying
lengths on the same litigant after finding him in contempt on
three separate occasions. In accordance with Rule 1:10-1, the
trial court founded the first adjudication on a series of letters
and certifications in which the litigant made highly disparaging
comments about the judge. Pursuant to Rule 1:10-2, a different
judge based the second adjudication on the court's findings that
the litigant had violated numerous provisions of a temporary
restraining order. Finally, under that same rule, a third judge
held the litigant in contempt based on the court's finding that
he had attempted to intimidate a witness and opposing counsel.
A divided panel of the Appellate Division affirmed the three
adjudications. We affirm the disposition in the first and third
actions, and reverse the disposition in the second action.
Given the long, circuitous path on which this case has traveled, a brief road map is in order. The City of Paterson (the City) and its Chief of Police, Vincent Amoresano (collectively, plaintiffs), filed a Chancery Division action in June 1996 against Bernard Laufgas (defendant). Somewhat ironically, that action, which also centered on alleged disruptive conduct on the part of defendant, provided the medium in which defendant engaged in the separate acts of contempt that are the subject of this appeal.
Plaintiffs' action sought both temporary and permanent restraints. Over the lengthy history of their dispute, the parties appeared before several judges. Judge Saunders considered plaintiffs' request for temporary restraints, entering those restraints in July 1996. Two years later, Judge Passero presided over an eight-day trial, and ruled in favor of plaintiffs in respect of their application for permanent restraints. In the interim, Judge Passero addressed numerous pre-trial issues. Although named as a plaintiff, the Passaic County Prosecutor's Office essentially ended its participation in April 1997 for reasons not relevant to our disposition.
Judge Passero adjudicated the first of the three contempt charges that grew out of plaintiffs' underlying Chancery Division action. Two other trial judges respectively adjudicated the second and third contempt charges. We will first describe the facts pertaining to plaintiffs' action, derived largely from the trial testimony presented before Judge Passero. We then will outline defendant's conduct that formed the basis of the three contempt adjudications.
At all times relevant to this dispute, defendant was a resident of Barnegat. In February 1996, defendant traveled to the City to photograph furniture and garbage left by former tenants of a dwelling owned by his wife. In response to a telephone call from the owner of a neighboring house, a City police officer arrived at the scene to investigate whether the debris was being left in front of that neighbor's property. The officer testified that when he approached defendant to discuss the neighbor's call, defendant became “arrogant” and “nasty.”
After defendant twice refused to identify himself, the officer charged him with obstructing a governmental function in violation of N.J.S.A. 2C:29-1. The officer also issued defendant a ticket for obstructing the sidewalk with the debris. After the issuance of that summons, defendant's contact with City officials intensified and grew increasingly adversarial. Defendant filed a complaint with the Police Department's Office of Internal Affairs, alleging that the officer who had issued him the ticket had made racial slurs toward defendant. A different officer investigated that complaint and concluded that there was no basis for it, a finding accepted by Chief Amoresano.
A third officer testified that on several occasions defendant disrupted the employees working at the police chief's office. As an example, the officer explained that defendant would demand to see Chief Amoresano without an appointment. When those requests were refused, “[defendant] would become hostile, he would become abusive; he'd raise his voice [so] that it would be totally disturbing[.]” On one occasion, the officer escorted defendant out of police headquarters after he purportedly became abusive and refused to comply with repeated requests to leave. Defendant subsequently filed a criminal complaint against that officer, charging him with official misconduct. That complaint was later dismissed.
A parking violations officer testified that she had encountered defendant when she was issuing summonses to vehicles parked at the City's public safety complex. According to the officer, she observed defendant in a small gray car that was parked illegally. When she informed him that he needed a parking permit, defendant yelled at the officer. Defendant ordered the officer to issue summonses to the police cars found in the same area, cars that defendant contended also had been parked illegally. The officer issued only a warning to defendant. Nonetheless, he purportedly followed her and yelled at her for approximately forty minutes as she tried to continue her duties. The officer further testified that she had felt threatened by defendant's behavior, and that his conduct had interfered with her work. Defendant later filed criminal charges against the parking violations officer, alleging official misconduct because she had refused to issue tickets to the marked patrol cars.
A police captain testified that he had observed defendant in the municipal parking lot in the section reserved for court employees and municipal court judges. The officer stated that defendant was recording license plate numbers and photographing vehicles. The officer later learned that defendant had obtained the home addresses of police officers through records obtained from the New Jersey Division of Motor Vehicles. After photographing the cars of City officials, defendant issued “citizen parking violations” for vehicles owned by City employees.
The City's clerk testified that defendant had sent a letter to the Mayor requesting that he (defendant) be permitted to inspect a large number of documents. The clerk estimated that those documents, some of which dated as far back as sixteen years, would have amounted to about 500,000 pages. She also testified that when defendant visited the clerk's office “he demand[ed] information . . . and he often [became] abusive and disruptive[.] . . . [M]y staff tr[ied] to assist him[,] and when they [could not] assist him [] they [would] call me out because they [were] afraid[,] and they [felt] that [he was] disrupting the office.” In the same vein, the clerk noted that “because of the nature of his comments and language that he use[d],” her staff was fearful of defendant. Defendant filed criminal charges against the clerk for official misconduct, but those charges eventually were dismissed.
Another City employee, a license inspector, testified that defendant came to his office and disrupted the employees working there by announcing that he was suing the City. Defendant allegedly asserted that he had a right to publish the home addresses of public employees. The inspector also testified that defendant “made a comment about Miss Susan Champion, the City Attorney. He stated that . . . Susie thought she was cute, but she screwed herself. He did not elaborate on that.”
Another police officer, a lieutenant who had been assigned to the records bureau in 1996, testified that defendant had requested numerous police reports. When asked to pay the copying charge for those documents, defendant allegedly became abusive and refused to pay. The lieutenant also testified that defendant went to the records bureau “for all different kind[s] of reports not relating to anything,” and did not offer his staff the specific information necessary to locate the requested documents. According to the officer, when members of the bureau staff tried to clarify defendant's request, “he became abusive, nasty, [and] called them stupid, ignorant, [saying] that's the only job they could get working for the City.” The officer noted that if he had produced all of the police reports requested by defendant, they would have amounted to over a million pages. He described defendant as using loud and abusive language after his requests had been denied and stated that such conduct intimidated other citizens looking for records.
A sixth police officer, a sergeant, had contact with defendant. The sergeant testified that he had been called to the public works department because “there was an individual fighting inside the office.” According to the officer, when he arrived on the scene, he heard defendant insult at least three female employees by “calling them incompetent[] idiots.” Defendant purportedly spoke loudly and belligerently, and was aggravating those around him. The officer testified that it took him at least five minutes to persuade defendant to leave the office and that defendant was “nasty” and “insulting” to the women working there. The sergeant also expressed the view that employees at the public works department were unable to function when defendant was in their office. Consistent with past practice, defendant filed criminal charges against the sergeant, alleging official misconduct. Those charges were later dismissed.
Plaintiffs filed a complaint and applied for an order to show cause in the Chancery Division in June 1996. Specifically, plaintiffs sought to restrain defendant from mailing discovery requests or communications “of any nature” to City employees at their home addresses; from obtaining or publicizing the home addresses of City employees; from going to the homes of City employees; from entering public buildings unless defendant had a purpose that could not be satisfied by telephone or mail; and from engaging in “loud, abusive, or disruptive conduct” in public buildings. They sought also to require that defendant mail all pleadings and discovery requests directly to the City's attorneys rather than serve or deliver such documents personally.
On the return date of the order to show cause, Judge Saunders considered numerous affidavits of City employees describing defendant's conduct as well as the arguments presented by the parties. Defendant represented himself pro se, a practice that he has maintained throughout the course of this litigation. The trial court entered the temporary restraints in an order dated July 17, 1996, the relevant portions of which are as follows:
1. The [d]efendant . . . is hereby restrained from contacting or communicating in any fashion, including but not limited to mail, with employees of the City of Paterson, including but not limited to Paterson police officers, at their home address[es].
2. The [d]efendant . . . is restrained from going to the homes of any employees of the City of Paterson including but not limited to Paterson police officers.
3. The [d]efendant . . . is restrained from obtaining or publicizing the home addresses of City of Paterson police officers or any party to this litigation, including specifically restrained from obtaining said information from the New Jersey Division of Motor Vehicles.
4. The [d]efendant . . . is restrained from personally serving papers of any kind, including, but not limited to summonses, complaints, and discovery requests on any employee of the City of Paterson. The Corporation Counsel's office of the City of Paterson shall accept all mailings from the [d]efendant . . . and acknowledge service of same. In the event that service of said pleadings cannot be made by mail, the Corporation Counsel's office of the City of Paterson will acknowledge personal service of said papers on the part of the City or any employee thereof. Said service on the Corporation Counsel's office shall constitute good service on any employee of the City of Paterson.
5. The [d]efendant['s] . . . access to City of Paterson public buildings is limited to those in which he has legitimate business. Defendant['s] . . . access to said buildings is specifically conditioned on his advising the office of Corporation Counsel of the City of Paterson by telephone in advance at least 2 hours of his entering any City building and the purpose for his entry into said building.
6. The [d]efendant . . . is restrained from abusive or disruptive conduct while in public buildings of the City of Paterson.
11. These preliminary restraints will continue until the final trial of this matter.
Defendant filed a motion asking the court to reconsider those temporary restraints. The court denied that motion. Defendant also filed a complaint entitled “Cross Complaint in Lieu of Prerogative Writ.” That complaint sought disclosure of certain records and documents described above, see ante at ___ (slip op. at 6), and attempted to revive defendant's previous bias complaints against the police department. The complaint named the Mayor as one of the defendants, in addition to other officials. The complaint was later dismissed.
Defendant also filed a criminal complaint against Judge Saunders and his law clerk. Like others filed by defendant, that complaint was later dismissed. Nevertheless, Judge Saunders recused himself from the litigation in August 1996. The case was then assigned to Judge Passero. The court thereafter restrained defendant from filing further criminal complaints against any person involved in the proceedings without first obtaining a probable cause finding from a neutral judicial officer. Although the time for discovery had passed in plaintiffs' Chancery Division action, the court permitted defendant additional time to serve interrogatories.
In June 1997, defendant filed a motion seeking to disqualify Judge Passero. He also sought disqualification of the City's attorney, Susan Champion. Judge Passero denied those motions, stating that he regarded them as “totally frivolous[.]” The court further stated that
[defendant] somehow has to learn that because a judge makes a ruling he does not like, that does not give him the right to file criminal charges against the judge, to threaten charges against the judge, to file ethics charges against the judge and the like. We have an appellate process. Lawyers are bound by that. Litigant[s] have to be bound by that.
There is a criminal law provision that deals with attempts at intimidation where cases are pending. And it seems to me that that provision may very well apply to the type of conduct that has been going on in this case before Judge Saunders [and] before me[.] All while they're pending, these threats are being made.
Judge Passero also continued to address the issue of interrogatories. The court limited defendant to fifty single- part questions to the City and fifty single-part questions to Chief Amoresano. Because defendant apparently did not comply with that order, the court denied defendant's subsequent motion to compel interrogatory answers. The court, however, gave defendant thirty days to serve new interrogatories that complied with its original order.
On December 10, 1997, defendant sent Judge Passero a letter stating in part:
I am sorry to say I believe Susan Champion is the type of lawyer, that will sell her mother and father for two bits. While she gets great paid [sic] for her representing [the City], all I am attempting to [do is] defend my rights thought [sic] all those lies she is submitting to the court. . . . Judge Passero, I believe, this case is run[] from the 2nd floor of the City of Paterson, not from the Passaic County Courthouse.
Defendant served his second set of interrogatories in December 1997. Plaintiffs responded about a month later. Defendant stated in a February 2, 1998, letter to Champion: “You are not my attorney . . . you[r] sole function in this matter is to be a good little girl and respond. You may have your way with Judge Passero[.] I don't know what you do[] with him to get your way, but in this matter you will respond.” On its face, the letter does not indicate that it had been copied to Judge Passero. The court, however, received a copy of it on February 5, 1998, presumably as part of the record of the litigation. On February 9, 1998, defendant asserted in another letter to Champion that he considered the City's responses to his interrogatories to be “evasive or unanswered,” and that “[w]hile Judge Passero and yourself entered into a conspiracy to limit me to 100 question[s] and no oral deposition . . . [y]ou file[d] this civil action on behalf of [the City] for the sole reason to harass me[.]” Defendant sent a copy of that letter to Judge Passero in addition to other members of the judiciary. Defendant thereafter filed another motion to dismiss plaintiffs' action.
The parties appeared before Judge Passero in March 1998. At that time, the trial court noted that the case was scheduled for trial in April. The court suggested that defendant obtain the services of counsel. (The court had urged defendant to retain an attorney on more than one occasion.) Defendant rejected that suggestion. The court also determined that plaintiffs “fairly, fully, and adequately” answered defendant's interrogatories and thus denied defendant's motion to compel additional discovery. Lastly, defendant was directed to refrain from personally serving papers on the judge or any members of his staff.
In April 1998, prior to the start of the trial, defendant served Champion with a subpoena to appear as a witness and again filed a motion to disqualify Judge Passero. In an April 15, 1998, letter to the judge, defendant wrote: I know you hate me, I don't know why[], but would love to find out. I guess doing favors for politicians, selling out justice, makes you feel good, I am sorry for you.
Dear Judge, you are history, you will no longer be seating [sic] or hearing any of my cases, [i]n fact you are my witness. By the time you get this letter, you will be the proud owner of one of my subpoenaed [sic] as a witness in this matter. It's great to have you on my side, the winning side for a change. Just as I have said all along, you are trying your best to fix the case.
In addition to that letter, defendant filed numerous certifications in support of his motion to disqualify the judge. In a certification filed on April 20, 1998, defendant stated that “Judge Passero clearly is motivated by his close relation with the Political parties not the judicial system.” In that same certification he stated: “I understand why Susan Champion and Plaintiff never asked for discovery and or Interrogatories, since Judge Passero is conspiring to fix this case.” That language was consistent with a prior June 22, 1997, certification in which defendant stated that Judge Passero “leans of being a bias[ed], corrupt and irresponsible judge controlled and manipulated by political influence[s] in the City of Paterson.” In yet another certification, filed April 13, 1998, defendant stated that “Judge Passero discussed with other judges and insured that other judges fix cases against defendant.” Shortly after sending the April 15, 1998, letter, defendant appeared in open court and presented Judge Passero with a subpoena to appear at the upcoming trial. Defendant stated, “By the way now you're a witness so you can't be the judge in the case. In the meantime have a nice day.” When the judge informed defendant to be present in court on the following Monday for the start of the trial, defendant again requested that the judge recuse himself. The judge later denied defendant's renewed request.
The trial commenced on April 20, 1998, and ended on April 29, 1998. Numerous witnesses appeared on behalf of plaintiffs. The witnesses described the course of events beginning in February 1996 when that first City police officer issued defendant the ticket for allegedly obstructing a sidewalk with debris. The succeeding events that mushroomed from that initial incident, as well as a summary of the witnesses' testimony, are set forth above. See ante at ___ (slip op. at 4-8).
At the conclusion of the bench trial, Judge Passero ruled in favor of plaintiffs, concluding that “[defendant] finds symbols of authority to be offensive and tries his best to degrade symbols of authority by threats, by charges, by innuendoes, [and] by intimidation[.]” The trial court also noted that defendant previously had been convicted of physically assaulting a municipal court judge in a another municipality, suggesting that the City's police officers had acted with appropriate caution in their interactions with defendant. The court entered the final restraining order on May 5, 1998.
Against that extensive backdrop, we now focus on the specific findings of contempt that are the subject of this appeal. On the first day of the trial of plaintiffs' Chancery Division action, Judge Passero charged defendant with contempt in the face of the court in accordance with Rule 1:10-1. We describe that rule in detail below. Generally, it authorizes a court to adjudicate contempt summarily, without issuing an order to show cause, under certain conditions.
The trial court summarized the numerous letters and certifications sent or filed by defendant that constituted the factual basis for the contempt charge. The court relied on a total of twelve documents. Those documents included defendant's December 10, 1997, and April 15, 1998, letters to the judge; the two February 1998 letters to Champion; and defendant's numerous certifications in support of the disqualification motions. The court deferred adjudication of the charge and imposition of punishment until the trial for plaintiffs' restraints ended.
We note that during the pendency of that trial, on April 27, 1998, the court pointedly asked defendant whether he wanted to address the contempt charge before the trial concluded. Judge Passero stated, “I've charged you with contempt in the face of the [c]ourt under 1:10-1 and I'll deal with that at the end of the case, unless you prefer that I deal with it now. Do you want to deal with it now?” The court then explained the process of appellate review and again stated, “if you want to deal with the contempt this afternoon, we'll deal with it this afternoon.” Defendant replied, “No. I'll wait until the end.”
After hearing summations in plaintiffs' action, Judge Passero reiterated the basis for contempt and provided defendant with the opportunity to respond. Defendant denied that he intended any disrespect toward the court. The court summarized defendant's position by observing, “Your logic is this: You can say anything you want about a judge, you can accuse the judge of unethical conduct . . . all without any foundational basis, and as long as you sign the letter 'respectfully submitted' you deem it okay.” The trial court issued its certification and order of contempt on April 29, 1998. It sentenced defendant to sixty days in the county jail.
The second adjudication of contempt arose from an application by the City's attorney in which she claimed that defendant had violated numerous paragraphs of Judge Saunders' July 17, 1996, temporary restraining order (TRO). In support of that application, Champion presented numerous witnesses who testified before Judge Passero on April 20 and April 21, 1998. Those witnesses testified that defendant was loud and verbally abusive when he dropped off documents at the City's law department; that defendant entered the Mayor's office requesting the name of a certain receptionist; that defendant parked his vehicle at a curb on a residential street, next to the home of Lieutenant Lawrence Gallagher, a City police officer, while a process server delivered a subpoena directed to the officer's wife; and that the same process server delivered a similar subpoena to the wife of another police officer at that officer's home while defendant watched from a parked vehicle across the street.
Defendant testified on his own behalf, denying that he had violated any provision of the TRO. Following that testimony, Judge Passero issued an order to show cause pursuant to Rule 1:10-2. Generally stated, that rule provides that institution of summary contempt proceedings, other than proceedings under Rule 1:10-1, shall be on notice to the alleged contemnor and instituted only “by the court upon an order for arrest or an order to show cause specifying the acts or omissions alleged to have been contumacious.” R. 1:10-2(a). On June 22, 1998, a different judge presided over the proceeding instituted by Judge Passero. Judge Marmo found that defendant had violated various paragraphs of the TRO, and sentenced him to thirty days in the county jail. In reaching that conclusion, the court relied on the testimony of the State's witnesses contained in the transcripts of the proceeding held before Judge Passero. The court also considered the testimony of two witnesses offered by defendant. The State did not call any witnesses before Judge Marmo, relying entirely on the testimony contained in the transcripts.
The third and final finding of contempt arose from an application made by Champion, also under Rule 1:10-2. The basis of that application was that defendant allegedly made intimidating comments to Lieutenant Gallagher's wife, and made similar comments to Champion. A Sheriff's officer and State Police detective each heard and described what he considered to be defendant's intimidating comments. According to the Sheriff's officer, defendant allegedly stated in a loud voice to the officer that “he was going to sue the wives next, the wives of the police officers and that he was going to call the children [of the officers] to testify.” He made those comments in the courtroom in the presence of Lieutenant Gallagher's wife. Mrs. Gallager, who had been subpoenaed by defendant, was seated next to her husband at the time of defendant's statements.
The State Police detective testified that he had heard defendant state to Champion “that [she] would be the target of his next civil case.” The detective testified further that, in his view, the clear purpose of defendant's comments was “to intimidate [Champion], perhaps to either back off from what [she was] doing in this case or in any other future cases.” Based on the testimony of the Sheriff's officer and the State Police detective, Judge Passero issued his second order to show cause under Rule 1:10-2.
A third judge, Judge Donato, conducted the proceeding in respect of the second Rule 1:10-2 contempt application. Unlike the prior Rule 1:10-2 proceeding, the State called numerous witnesses, including the Sheriff's officer and State Police detective, who testified before Judge Donato in support of the application. Following that testimony, the court found defendant guilty of contempt for attempting to intimidate Lieutenant Gallagher's wife and Champion. On July 20, 1998, the court sentenced defendant to sixty days in the county jail.
To summarize, there are three contempt adjudications before us for review: (1) the Rule 1:10-1 adjudication, based on the letters and certifications that were sent to or filed with Judge Passero during the course of plaintiffs' litigation, for which defendant was sentenced to sixty days in the county jail; (2) the first Rule 1:10-2 adjudication, based on violations of the TRO, for which defendant was sentenced to thirty days in the county jail; and (3) the second Rule 1:10-2 adjudication, based on the findings that defendant had attempted to intimidate a witness and the City's attorney, for which he was sentenced to sixty days in the county jail.
With one member of the panel dissenting, the Appellate Division affirmed all three dispositions. Defendant appeals to this Court as of right. R. 2:2-1(a)(2). We now affirm the Appellate Division in respect of the Rule 1:10-1 action and the second Rule 1:10-2 action. We reverse the order of contempt in respect of the first Rule 1:10-2 action. For completeness, we note that the Appellate Division also concluded that certain provisions of the final restraining order are overly broad, and directed that the order be modified. That aspect of the panel's disposition is not before us for review.
We begin our analysis by noting these general principles.
The law of contempt is derived from statutes, rules of court, and judicial decisions. In general, contempt includes disobedience of a court order or misbehavior in the presence of the court by any person or misbehavior by an officer of the court in his official transactions. The essence of the offense is defiance of public authority.
A defendant is entitled to certain safeguards accorded criminal defendants. Those safeguards include the presumption of innocence, the privilege against self- incrimination, the right of cross- examination, proof of guilt beyond a reasonable doubt, and the admissibility of evidence in accordance with the rules of evidence. However, there is no constitutional right to indictment or trial by jury in every summary criminal contempt proceeding.
(internal citations omitted).]
The power of our courts to punish for contempt is long established. In re Buehrer, 50 N.J. 501, 513 (1967). We have described it as an extraordinary power, to be exercised sparingly against those whose conduct “has the capacity to undermine the court's authority and to interfere with or obstruct the orderly administration of justice[.]” In re Daniels, 118 N.J. 51, 61 (1990). As Justice Handler succinctly stated, “there are occasions when this inherent authority must be exercised both swiftly and summarily in order to ensure obedience to court orders and respect for court procedures.” In re Yengo, supra, 84 N.J. at 130 (Handler, J., concurring).
Generally, the Rules of Court provide for two methods of trying the alleged contemnor, “depending upon whether the offense was committed in, or outside, the presence of the court.” In re Carton, 48 N.J. 9, 21 (1966). Acts committed in the presence or face of the court are governed by Rule 1:10-1. That rule provides in full:
A judge conducting a judicial proceeding
may adjudicate contempt summarily without an
order to show cause if:
(a) the conduct has obstructed, or if
continued would obstruct, the proceeding;
(b) the conduct occurred in the actual
presence of the judge, and was actually seen
or heard by the judge;
(c) the character of the conduct or its
continuation after an appropriate warning
unmistakably demonstrates its willfulness;
(d) immediate adjudication is necessary
to permit the proceeding to continue in an
orderly and proper manner; and
(e) the judge has afforded the alleged
contemnor an immediate opportunity to
respond.
The order of contempt shall recite the
facts and contain a certification by the
judge that he or she saw or heard the conduct
constituting the contempt and that the
contemnor was willfully contumacious.
Punishment may be determined forthwith or
deferred. Execution of sentence shall be
stayed for five days following imposition
and, if an appeal is taken, during the
pendency of the appeal, provided, however,
that the judge may require bail if reasonably
necessary to assure the contemnor's
appearance.
Applying those tenets and the five enumerated requirements
of the rule, we are satisfied that the trial court did not err in
adjudicating defendant in contempt under Rule 1:10-1. In respect
of the first requirement, we agree with the finding expressed in
Judge Passero's certification that defendant “attempted to
obstruct the court proceedings by undermining [the] court's
position and authority[.]” Defendant's repeated attempts to
disqualify the trial judge without foundation, coupled with his
baseless efforts to subpoena the judge to cause his recusal, had
obstructed the pre-trial proceedings and, if left unchecked,
would have obstructed the trial itself.
Defendant revealed his purpose in his April 15, 1998, letter
to the judge, in which he wrote “you are history, you will no
longer be seating [sic] or hearing any of my cases, [i]n fact you
are my witness. By the time you get this letter, you will be the
proud owner of one of my subpoenaed [sic] as a witness in this
matter.” He essentially repeated those words directly to the
judge in open court. Given defendant's extensive pattern of
prior conduct, we are persuaded that the trial court was
justified in its view that defendant's continued behavior would
have obstructed the trial if the court had not acted when it did.
The requirement of Rule 1:10-1(a) has been satisfied.
In respect of the second requirement, we must evaluate
whether defendant's conduct “occurred in the actual presence of
the judge, and was actually seen or heard by the judge[.]” R.
1:10-1(b). This Court has noted previously that “direct
contempt, or contempt in the face of the court, is conduct that a
judge can determine through his own senses is offensive and that
tends to obstruct the administration of justice.” In re Yengo,
supra, 84 N.J. at 123. Here, defendant's conduct consisted
primarily of the filing of numerous letters and certifications
containing highly disparaging comments about the judge. That
raises the question whether a contemnor's letters and
certifications, filed in connection with repeated motions, may
qualify as contempt in the “actual presence” of the court.
In addressing that question, a brief discussion of the
background to Rule 1:10-1 may be helpful. This Court adopted the
current text of the rule as proposed by the Civil Practice
Committee in its 1994 report on the subject. See 1994 Report of
the Supreme Court Committee on Civil Practice (January 18, 1994),
including Report of the Subcommittee on Summary Contempt
(Subcommittee Report). That report concluded that “the court's
power to respond on the spot to contumacious conduct should be
limited to that conduct and those situations which by their
nature must be immediately dealt with rather than deferred for
later adjudication.” Subcommittee Report at 2-3. The Committee
recommended that to effectuate that limitation, Rule 1:10-1
should “make[] clear that the conduct must occur during the
actual course of judicial proceedings, i.e., in the courtroom or
in chambers.” Id. at 3.
That recommendation, and its ultimate embodiment in the
rule, would seem to run counter to a series of older decisions in
which acts committed outside of the courtroom were found to be
contumacious in the face of the court. See, e.g., In re
Jenkinson,
93 N.J. Eq. 545 (Ch. 1922) (act of contempt consisted
of sending threatening letter to clerk of court); In re Bowers,
89 N.J. Eq. 307 (Ch. 1918) (act of contempt took form of
threatening letter from father of husband in divorce proceeding
to wife's attorney); State v. Sax,
139 N.J. Super. 157 (App.
Div.) (contumacious act consisted of ticketed motorist sending
municipal clerk angry letter, in which motorist directed
obscenities to clerk), certif. denied,
70 N.J. 525 (1976).
We agree that the 1994 revisions were intended to limit the
summary contempt power under Rule 1:10-1 to the defined instances
noted in the rule. Thus, a vituperative letter from one litigant
to another, an angry motorist's letter containing obscenities
addressed to a court clerk, or an isolated letter containing
disrespectful statements to a judge, and similar material,
ordinarily would not qualify as contempt in the presence of the
court. That, however, is not this case.
Here, defendant authored and submitted twelve separate
letters or certifications containing derogatory and scornful
comments about the judge who was presiding over litigation in
which defendant was a party. The court received those materials
in chambers during the pendency of an active case at different
intervals in the litigation. In many instances, defendant's
statements were related directly to motions to disqualify the
judge, motions intended to be heard in open court. In this
narrow circumstance, we are persuaded that Rule 1:10-1 includes
within its ambit the form of conduct at issue here. Thus, the
requirement of Rule 1:10-1(b) has been satisfied.
We next must determine whether “the character of
[defendant's] conduct or its continuation after an appropriate
warning unmistakably demonstrat[ed] its willfulness[.]” R. 1:10-
1(c). That defendant's conduct was willful appears almost self-
evident from the conduct itself. Defendant has never denied
writing the letters or certifications at issue, nor has he
attempted to withdraw any of the more objectionable material.
Instead, his conduct seemed calculated to force the withdrawal of
Judge Passero from the litigation, presumably because defendant
did not agree with one or more of the court's rulings.
Even if we were to assume that defendant's conduct by its
character did not demonstrate its willfulness, the record reveals
that the trial court had warned defendant that he must stop
filing unfounded and threatening certifications. The court
stated as early as July 1997 that defendant
somehow has to learn that because a judge
makes a ruling he does not like, that does
not give him the right to file criminal
charges against the judge, to threaten
charges against the judge, to file ethics
charges against the judge and the like. We
have an appellate process. Lawyers are bound
by that. Litigant[s] have to be bound by
that.
Reviewing defendant's conduct and the record as a whole, we
conclude that the mandate of Rule 1:10-1(c) has been met.
The rule further provides that a summary contempt order may
be entered only if “immediate adjudication is necessary to permit
the proceeding to continue in an orderly and proper manner[.]”
R. 1:10-1(d). As noted, the court initially stated its reasons
for charging defendant with contempt at the outset of the trial.
We agree with the trial court that its action “was necessary to
permit the trial of this matter to proceed in an orderly and
proper manner, to preserve the integrity and dignity of this
court.” In view of the extensive record of defendant's prior
conduct in the months leading up to the trial, the court's
decision to act was reasonable and, therefore, sustainable. Cf.
State v. Zhu,
165 N.J. 544, 555 (2000) (observing that “we
[should] not substitute our judgment for the judgment of those
closest to the trial when it appears that they have acted
reasonably under the circumstances”).
Lastly, the rule requires that before a summary adjudication
occurs the court must accord “the alleged contemnor an immediate
opportunity to respond.” R. 1:10-1(e). The court made its
intentions known on the first day of trial and stated that it was
deferring further action until after the trial's conclusion. At
a subsequent juncture in the trial, the court asked defendant
whether he wanted to address the issue before the trial ended.
Defendant preferred to wait. After hearing closing statements in
plaintiffs' trial, the court reiterated the basis for contempt.
Then, the court accorded defendant an opportunity to contest that
basis and present any defenses or explanations that might have
served to rebut the charge or lessen the punishment.
We are satisfied that the trial court accorded defendant a
realistic opportunity to respond immediately after it restated
the charges at the conclusion of plaintiffs' trial, and before it
pronounced judgment. As this Court noted in a similar setting,
“the fact that the judge used the words 'I find you in contempt'
before giving defendant the opportunity to speak did not abridge
his right to be heard. . . . [T]he words themselves should not
control where the one charged with contempt is actually permitted
to respond, as [the defendant] was here.” In re Daniels, supra,
118 N.J. at 69 (internal citations omitted). Under those
circumstances, we find that the court's action under Rule 1:10-
1(d) and (e) is sustainable.
We hold, therefore, that the trial court did not err in the
adjudication of contempt under Rule 1:10-1. We reiterate that
the judiciary's summary contempt power “should be exercised
sparingly and only in the rarest of circumstances.” In re
Daniels, supra, 118 N.J. at 61. This is such a rare case. We
acknowledge that the trial court permitted a temporal gap between
the contempt charge and formal adjudication of that charge. We
would expect a trial court, in a more typical Rule 1:10-1
proceeding, to charge the alleged contemnor, provide him or her
with an immediate opportunity to respond, and then adjudicate the
matter without interruption.
In this case, however, the gap did not disadvantage
defendant, a pro se litigant, because it gave him the opportunity
to retain an attorney prior to the formal adjudication. In that
regard, when notifying defendant of the contempt citation on the
first day of plaintiffs' trial, the court pointedly stated: “I
will give you an opportunity to explain, to show extenuating
reasons[,] to have an attorney, which I urge that you have[,] and
I will give you a full opportunity[,] but I'm citing you for
contempt.” (Emphasis added.) Also, as previously noted,
defendant apparently preferred to wait until the conclusion of
plaintiffs' trial before finalizing the contempt disposition.
We also are satisfied the trial court's process was
necessary given the unique history of the case. When plaintiffs'
trial commenced, the court was faced with defendant's highly
disparaging letters and certifications, and the likelihood that
defendant would continue to act improperly. As noted in the
State's brief, the timing of the initial contempt charge was
“necessary to ensure continuity of the proceedings . . . because
defendant was engaging in a continuous pattern of misconduct[.]”
Because a primary purpose underlying the contempt power is to
vindicate a court's authority, see In re Adler,
153 N.J. Super. 496, 501 (App. Div. 1977), the trial court took appropriate
action at the outset to deter defendant from further acts that
would have obstructed the trial.
Lastly, we find nothing in the record to suggest that Judge
Passero overreacted to defendant's accusations or that the court
harbored any bias toward defendant. We cannot assume or
conclude, simply because the trial court was the subject of
disparaging comments, that bias infected either the adjudication
of contempt or the sentence imposed. In addition, we note the
observation of the United States Supreme Court that “where acts
of contempt are palpably aggravated by a personal attack upon the
judge, in order to drive the judge out of the case for ulterior
reasons, the scheme should not be permitted to succeed.” Cooke
v. United States,
267 U.S. 517, 539,
45 S. Ct. 390, 396,
69 L.
Ed. 767, 775 (1925).
In sum, in view of the whole record, the Court is convinced
that defendant committed the acts of contempt as charged, and
that he was provided a fair opportunity to respond before the
trial court rendered its final order. We also are satisfied that
the adjudication and process employed by the trial court was
necessary and “just under the circumstances.” R. 2:10-4. In the
last analysis, we decline to second-guess the court's
determination in this unique setting. The Rule 1:10-1 proceeding
passes muster.
We next turn to the two Rule 1:10-2 adjudications. Rule 1:10-2 provides in full:
(a) Institution of Proceedings. Every summary proceeding to punish for contempt other than proceedings under R. 1:10-1 shall be on notice and instituted only by the court upon an order for arrest or an order to show cause specifying the acts or omissions alleged to have been contumacious. The proceedings shall be captioned “In the Matter of _________ Charged with Contempt of Court.”
(b) Release Pending Hearings. A person charged with contempt under R. 1:10-2 shall be released on his or her own recognizance pending the hearing unless the judge determines that bail is reasonably necessary to assure appearance. The amount and sufficiency of bail shall be reviewable by a single judge of the Appellate Division.
(c) Prosecution and Trial. A proceeding under R. 1:10-2 may be prosecuted on behalf of the court only by the Attorney General, the County Prosecutor of the county, or where the court for good cause designates an attorney, then by the attorney so designated. The matter shall not be heard by the judge who instituted the prosecution if the appearance of objectivity requires trial by another judge. Unless there is a right to a trial by jury, the court in its discretion may try the matter without a jury. If there is an adjudication of contempt, the provisions of R. 1:10-1 as to stay of execution of sentence shall apply.
Rule 1:10-2 contemplates that when the matter is heard by a judge other than the one who instituted the proceeding, the alleged contemnor will be permitted to cross-examine the State's witnesses and otherwise put on a defense before the judge who actually adjudicates the matter. That did not occur in the first Rule 1:10-2 proceeding. There, the State did not call any witnesses before Judge Marmo. The State relied exclusively on the testimony of the prior witnesses contained in the transcript of the proceedings conducted before Judge Passero. On the first day of plaintiffs' trial for restraints, the City's attorney made the application underlying the first Rule 1:10-2 charge when she claimed that defendant had violated numerous provisions of the TRO. Defendant seemed surprised and asked the court, “Judge, are we going to have testimony on this today?” The court replied, “Right now.” Champion then presented numerous witnesses in support of her application. Although defendant had the opportunity to cross-examine those witnesses, he received inadequate notice for purposes of preparing an effective cross-examination.
That process might have been sufficient to sustain the court's order to show cause. However, when the matter was transferred to the subsequent judge for adjudication, defendant should have been given the opportunity to confront and cross- examine the State's witnesses before that judge. In the absence of that critical safeguard, the court was unable to evaluate fully the demeanor and credibility of the witnesses. Abeles v. Adams Eng'g Co., 35 N.J. 411, 427 (1961) (emphasizing importance of “conscientious conclusion of the trier of the facts as to which witnesses were more worthy of belief”).
In reaching that conclusion, we are mindful that, by its nature, the summary contempt proceeding accords the alleged contemnor less than a full panoply of procedural safeguards. See In re Daniels, supra, 118 N.J. at 60 (noting that punishment under court's contempt power “is imposed without the familiar procedures that ordinarily attend the criminal law”). That being the case, courts must maintain with care the protections articulated in In re Yengo and similar cases. Because one critical protection, the right to confrontation and cross- examination, was abridged in the first Rule 1:10-2 proceeding, we hold that the adjudication of contempt resulting from that proceeding cannot be sustained.
There was no similar procedural flaw in the second Rule 1:10-2 proceeding. In that action, the State presented its witnesses before the court that actually adjudicated the contempt. Defendant had notice of the hearing, was permitted to cross-examine all witnesses, and had adequate time to prepare a proper defense.
The remaining issue in respect of the second Rule 1:10-2 action is whether defendant's conduct itself was contumacious. In instituting the proceeding, Judge Passero stated, “I'm satisfied that probable cause exists. That [defendant] by words stated to [] Champion and . . . in front of Lieutenant Gallagher[] and his wife, attempted to intimidate these two people, one being a witness about to testify[.] . . . It's an intimidation tactic.” In the same vein, Judge Donato, in adjudicating the contempt, stated:
&n