Carton, Crahay and Handler.
Defendant, an attorney, was adjudged in contempt of court, R. 1:10-1, for her alleged failure to conform her courtroom attire to a ruling which the trial judge had purportedly issued to her two days earlier. She contends that (1) it was not proven beyond a reasonable doubt that she acted willfully and deliberately to violate the court's order; (2) her conduct, as a matter of law, fails to qualify as a contempt of court; (3) the finding of contempt is procedurally defective because she was not given an opportunity to be heard before the contempt adjudication, and (4) a contempt order amounts to unconstitutional discrimination against female attorneys. We review the matter de novo. R. 2:10-4.
On January 28, 1975 defendant appeared in court on behalf of the Camden Area Legal Services. She was a member of the Pennsylvania Bar appearing here pursuant to R. 1:21-3(d). Unfortunately, a discussion which took place on that day between the judge and defendant was held "off the record" at the judge's direction. State v. Green , 129 N.J. Super. 157, 166 (App. Div. 1974). It concerned defendant's attire and what we know about it is derived only from the record of defendant's subsequent appearance on January 30 and from the challenged contempt order.
The record of the January 30 appearance indicates that defendant recalled her January 28 attire as follows: "A pair of wool gray slacks, a matching gray sweater, and a green shirt." That record also reflects that the judge recalled that she was wearing a sweater and an open-collared blouse. The contempt order states that on January 28 she was wearing slacks.
The contempt order also states that on January 28 the judge "advised her that she was not properly attired for this courtroom." He told her that she should "not return to this Court to try any matter as an attorney unless dressed in customary courtroom attire."
On January 30, 1975 defendant appeared in the same court wearing slacks, a sweater and an open-collared blouse. She apparently spoke with the judge in his chambers although the conversation was also "off the record." Out of her presence the judge later placed his own statement on the record to the effect that during the in-chambers conversation he had told her "what my objections were as to her attire". There was no further specifications. At any rate, defendant then appeared in open court and the remainder of her exchange with the judge was recorded.
The judge reminded defendant that, two days earlier, he had objected to her attire. Specifically, he had objected to an open-collared blouse and a sweater. He said, though, that he did not really expect a woman to refrain from wearing open-collared blouses because he knew that it was not customary for them to wear neckties. Moreover, he did not object to slacks and did not care whether they matched "the jacket" or not. He would permit defendant to wear a dress in his courtroom, even if it was "loud," because he was "not fussy about the color." Thus, the use of a sweater was deemed the offensive article of clothing.
Defendant asked if she could be permitted to say something, to which the judge replied: "Let me finish, then you can say something." He noted that men were required to wear a jacket, slacks, shirt and necktie in his court. He felt
it only fair that a woman should also be required "to comply with any rules and regulations or code of dress." He said that defendant "should well realize what is proper before a Court," and he offered to continue defendant's cases "until you come in dressed in accordance with my guidelines."
He then immediately stated that defendant had "deliberately defied me" because two days before he had "objected to any form of sweater in the Court." He held that she was in contempt of court and imposed a $50 fine as the sanction.
Only then was defendant permitted to speak and she placed upon the record her recollection of her attire on the previous occasion. She remembered that the judge had "started off by saying that I should button up my collar, then saying something about not permitting sweaters, and then I should not -- I was not properly attired." She noted that she had, on January 30, asked the judge for written guidelines as to proper ...