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In re Callan

Decided: January 23, 1973.

IN THE MATTER OF MICHAEL CALLAN, HARRIS DAVID AND GERALD CLARK CHARGED WITH CONTEMPT OF COURT


Kimmelman, J.s.c.

Kimmelman

I

BACKGROUND

On November 21, 1972 Superior Court Judge Herbert ordered J. Michael Callan, Harris David and Gerald J. Clark to show cause why they should not be adjudged guilty of contempt of this court by reason of their conduct in an action entitled Newark Housing Authority v. Toby Henry, et al. , Docket No. C-1640-70, then pending before Judge Herbert. Callan, David and Clark are attorneys on the staff of the Newark-Essex Joint Law Reform Project which is an agency established to furnish legal services to the indigent. David and Clark are members of the bar of this State; Callan is a member of the bar of the State of New York and was specially admitted for the purpose of the Newark Housing Authority (hereinafter "N.H.A.") case. All three attorneys represented defendants in the N.H.A. case.

That action was instituted by the N.H.A. (a) to require the defendants to account for moneys allegedly paid to them by tenants of the Stella Wright housing project, the payments having been made as a substitute for rent payments to the N.H.A., and (b) to enjoin defendants from promoting and participating in the rent strike. Defendants answered and counterclaimed, citing deplorable and unsanitary conditions at the project as justification for their actions. As noted by Judge Herbert, the rent strike fund, which totaled $94,460.89, was being withheld as a lever to move the N.H.A. toward doing what a good landlord should do.*fn*

On February 7, 1972 Judge Herbert refused to order that the rent strike fund be turned over to a receiver but ordered that the fund be retained by defendants in the same place, in the same form and in the same account as theretofore pending further order of the court. Although at that time the rent strike fund was held in various savings bank accounts, it was withdrawn and converted into as many individual money orders as equaled the contribution to the fund made by each tenant. On March 1, 1972 the fund was placed in a safe deposit box at the Fidelity Union Trust Company, American office, in the name of the Stella Wright Tenants Association, under the control of defendants Toby Henry, Thomas Comerford and another person. On March 29, 1972 Judge Herbert again entered an order directing that no funds be withdrawn or removed from the safe deposit box except pursuant to a further order of the court.

Thereafter, by written opinion dated October 12, 1972 which, as all other pleadings in the cause, listed Callan, David and Clark of the Newark-Essex Joint Law Reform Project as appearing for defendants, Judge Herbert concluded that the doctrine of Marini v. Ireland , 56 N.J. 130 (1970), did not entitle the tenants of the Stella Wright Homes to rent-free occupancy but at most may have entitled

them to an abatement of rent because of a breach of the landlord's implied warranty of habitability. Addressing himself to the rent strike fund he observed that "The money has been idle too long. It ought to be used for someone's benefit." Judge Herbert then ordered that all tenants who had paid money into the rent strike fund show cause why their contributions should not be turned over to the N.H.A. and to show the basis why they may claim to be entitled to a refund.

The tenants who would be affected by a turn-over of the rent strike fund were duly served with notice and, as scheduled, the matter came on for hearing before Judge Herbert on November 17, 1972.

After the hearing commenced and during the course of argument by counsel for the N.H.A. directed towards the merits of the case, the proceeding was interrupted by Callan who then for the first time informed the court by means of a prepared statement that the subject matter of the hearing, the rent strike fund, had been removed from the safe deposit box and was in the process of being returned to the tenants. Counsel for the N.H.A. immediately decried that action, terming it "a flagrant, brazen and unequivocal defiance of the laws of this country, the laws of this state and the obligation of officers of this court * * *."

II

CHARGE

Cognizant of the aforementioned factors, Judge Herbert cited Toby Henry and Thomas Comerford as well as the three attorneys involved in this proceeding for contempt of court. The matter was assigned to the undersigned for trial. Henry and Comerford each pleaded guilty to the charge and were sentenced to jail for 45 days. Callan, David and Clark were tried before this court commencing on January 5, 1973.

SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION-ESSEX COUNTY DOCKET NO.

IN THE MATTER OR MICHAEL CALLAN, HARRIS DAVID and GERALD CLARK charged with Contempt of Court.

Order TO SHOW CAUSE

This matter being opened by Brach, Eichler, Rosenberg & Silver and it appearing to the Court from statements and representations made to it in open Court on November 17, 1972 by Michael Callan, Esq. in the presence of and with the knowledge of Co-Counsel Harris David, Esq. and Gerald Clark, Esq., that Toby Henry, Thomas Comerford and Edward Satterfield, named defendants in a certain action entitled Newark Housing Authority vs. Toby Henry, et als. , Docket No. C-1640-70, did enter into and remove certain funds contained in Safe Deposit Box #1326 of the Fidelity Union Trust Co., and did distribute part or all of the said funds to other persons in violation of certain orders of this Court dated February 7, 1972 and March 29, 1972, and said orders having been entered after and upon express representations of said counsel for the named defendants made to the Court that said funds would be kept safely subject to further order of the Court, and the named attorneys having undertaken a responsibility as officers of the Court to take all steps within their power to prevent a violation of the said orders and to advise the Court promptly of any intention or disposition to enter upon any such violation so that said funds, totalling more than $94,000.00, could at all times be fully protected from loss or dissipation, and the Court being of the opinion that Harris David, Gerald Clark and Michael Callan may be guilty of contempt of this Court,

It is, on this 21st day of November, 1972, ORDERED that Harris David, Gerald Clark and Michael Callan show cause before this Court, at the Essex County Hall of Records, Newark, New Jersey, on the 28th day of November, 1972, at 9 o'clock in the forenoon, or as soon thereafter as counsel may be heard, why they should not be adjudged guilty of contempt of this Court.

It is further ORDERED that Joseph P. Lordi, Prosecutor of the County of Essex or his duly designated assistant or deputy be appointed to prosecute these proceedings.

It is further ORDERED that a copy of this order be served upon the Prosecutor of Essex County and upon Harris David, Gerald Clark and Michael Callan personally within 3 days from the date hereof.

/s/ Ward J. Herbert, J.S.C.

The essence of the charge and the substance of the contempt tried by this court was twofold: first, that the named attorneys undertook a responsibility as officers of the court to take all steps within their power to prevent the rent strike fund from being removed and disbursed in violation of the court's previous orders; and second, that as officers of the court the named attorneys had a responsibility to advise or notify the court promptly of any intention or disposition of defendants to disburse the fund. Included within the second element of the charge was the failure on the part of the named attorneys to promptly advise the court of the actual removal and disbursement of the rent strike fund when that fact became known to them. The contempt thus charged was criminal in nature since it was concerned with conduct alleged to be directed against the authority or dignity of the court. It involved the element of public injury, and the citation had as its purpose the vindication of the court as a co-equal branch of government. N.J. Dept. of Health v. Roselle , 34 N.J. 331, 340 (1961); In re Bozorth , 38 N.J. Super. 184, 188 (Ch. Div. 1955); Cancellieri v. De Modica , 57 N.J. Super. 598, 603 (Law Div. 1959); see 17 Am. Jur. 2d, Contempt , § 78 at 72 (1964); 17 C.J.S. Contempt § 5(1) at 10 (1963). Thus, the attorneys were fairly informed in advance of the trial of the essential elements of the charge against them, In re Tiene , 17 N.J. 170, 180 (1954), and all concerned understood the nature of the charge and the fact that its possible consequences were penal in nature. The trial proceeded on that basis.

As directed by Judge Herbert, the summary contempt procedure was utilized, i.e. , there was neither indictment nor trial by jury although the proceeding was plainly penal in nature. Cf. In re Buehrer , 50 N.J. 501 (1967). The presumption of innocence of the named attorneys prevailed and the burden of the prosecution was to prove their guilt on the charge of contempt beyond a reasonable doubt. Buehrer, supra , 50 N.J. at 516.

The responsibility undertaken by the court in the trial of this matter was indeed weighty. In re Mattera , 34 N.J. 259, 272 (1961); N.J. Dept. of Health v. Roselle, supra. Judges must and do appreciate that while the contempt power is to be used sparingly and with judicial selfrestraint, it must nevertheless be exercised fearlessly when needed to uphold the dignity of the court and to encourage respect for its orders. McAllister v. McAllister , 95 N.J. Super. 426, 440 (App. Div. 1967); Cancellieri v. De Modica, supra.

III

FINDINGS OF FACT

Within that framework and in accordance with the requisite degree of proof the court has considered, weighed and deliberated upon the evidence and finds the facts as follows:

1. J. Michael Callan, Harris David and Gerald J. Clark are attorneys on the staff of the Newark-Essex Joint Law Reform Project. Together and individually they undertook and entered upon the legal representation of defendants and the Stella Wright Tenants Association in the N.H.A. case.

2. Each of the attorneys was fully aware of the terms of Judge Herbert's orders of February 7, 1972 and March 29, 1972, which required that the rent strike fund was to be held in a safe place and not be disbursed or returned to the tenants, and as of March 29, 1972 each knew that the funds were in a vault at the Fidelity Union Trust Company.

3. Each of the attorneys was fully aware of Judge Herbert's written opinion rendered October 12, 1972, and the order to show cause which followed it returnable November 17, 1972 whereby the defendants and the tenants were ordered to show cause why the rent strike fund should not be turned over to the N.H.A. and why they (the tenants) may be entitled to a refund or abatement.

4. On the afternoon of Monday, November 13, 1972, Callan, David and Clark attended a meeting of the executive committee of the Stella Wright Tenants Association. Defendants Toby Henry and Thomas Comerford were present at the meeting. The purpose of the meeting was to discuss strategy with respect to the rent strike fund and the order to show cause returnable November 17, 1972. The attorneys heard enough at that meeting to indicate to them that the rent strike fund was in imminent danger of being disbursed in violation of the court orders. By reason of what was said they found it necessary then and there to advise the executive committee not to return the money and, ...


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