On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Before Judges Pressler, Alley and R.B. Coleman.
The opinion of the court was delivered by: Pressler, P.J.A.D. (retired and temporarily assigned on recall)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Appellants in these two appeals, which we consolidate for purposes of this opinion, are public defenders who were assigned to the courtroom of the same trial judge as well as to other trial judges in the county. Each appellant, Regina Lynch in Docket No. A-3146-02T4 and Denise Cobham in Docket No. A-3147-02T4, appeals from a summary contempt order entered against her by that judge imposing a monetary sanction. We reverse both orders finding both of them to be materially deficient both procedurally and substantively.
The undisputed events surrounding these contempt orders began on Friday, January 31, 2003. During the morning session in the trial judge's courtroom, in a colloquy between Lynch and the judge, Lynch advised the judge that she was unaware that the case involving one of her clients had been scheduled for that day. Because of that scheduling, that client had apparently been brought to the courthouse from the jail. The judge assured Lynch that although he had to bring the client into the courtroom, nevertheless"if you're not prepared... we'll give it a new date."
At some point later in the morning Lynch was called to the courtroom of another judge to whom she was assigned. During her absence, the case of another of her clients was called. The judge noted Lynch's absence on the record and then noting that Cobham was present in the courtroom, the judge proceeded with the processing of that client in Cobham's presence and over her objection that she did not represent him. Immediately thereafter, the judge called the case of the first client who had been the subject of the judge's assurance to Lynch that a new date would be set. Lynch had not yet returned from the other judge's courtroom. The judge noted her absence, was unimpressed by Cobham's attempt to remind him of the earlier colloquy with Lynch, stated that he had nevertheless not"released" Lynch, held her in contempt, and fined her $75. When Lynch returned to his courtroom and sought to address the contempt holding, the judge said that he would consider it at an appropriate time. There were never, however, any further proceedings.
Before the morning session ended, the judge noted the unexcused absence of one of the male assistant prosecutors assigned to his courtroom but took no action against him. The judge did, however, make a lengthy statement on the record in effect advising that the absence of the public defenders and prosecutors from his courtroom during court sessions without his express permission would result in sanctions against them even if the cause of the absence was an order to appear before a different judge.
During the afternoon session of that Friday, the trial judge expressed to Cobham his general dissatisfaction with the public defender's office handling of violation of probation cases and demanded that Cobham's supervisor appear in his courtroom by 4:30 that afternoon. Cobham attempted to reach him but had to report back to the trial judge that she had been unable to do so. On the following Monday morning, Cobham appeared in the trial judge's courtroom, and the trial judge told her that the case of one of her clients would be heard at 1:30 that afternoon. Cobham responded that she had an appointment with the county's criminal presiding judge at 1:30 p.m. The trial judge nevertheless instructed her to be in his courtroom at that time and said that he would undertake to notify the presiding judge of this instruction by which, we note, the trial judge apparently assumed that his order took priority over that of the presiding judge. The trial judge could not, however, reach the presiding judge. Uncertain what to do, Cobham consulted her supervisor, who advised her to keep her appointment with the presiding judge, particularly in view of the trial judge's statement the previous Friday in which, in addition to his warnings and instructions to the lawyers, he had made clear that it was the presiding judge who was the authority for resolution of appearance conflicts. Cobham went to the presiding judge's chambers at 1:30 p.m. and she and her supervisor explained the situation to him. By the time the presiding judge was fully informed and called the trial judge to straighten the matter out, the trial judge had already, at 1:35 p.m., held Cobham in contempt because of her unexcused absence and fined her $250. There were no further proceedings and no further hearing on the asserted contempt.
The two separate written contempt orders entered by the trial judge were identical except for the name of adjudicated contemnor and the amount of the fine. Both orders began with the following cryptic recitation:
This matter being opened on the Court's own motion to determine if sanctions should be imposed pursuant to R. 1:10-1 and/or 1:10-2 on the above named for acting in a contemptuous manner before this court, and for just excuse being offered.
The orders then"ordered and adjudged" that each lawyer... is sanction[ed]...." followed by a statement of the amount of the sanction and the required date of payment. Both public defenders filed notices of appeal, and the presiding criminal judge stayed both orders pending appeal. The Attorney General has declined to participate in this appeal.
We consider first the procedural deficiencies. That consideration requires us to address briefly the summary contempt scheme provided for by R. 1:10. We start with Chief Justice Weintraub's explication of summary contempt in N.J. Dept. of Health v. Roselle, 34 N.J. 331 (1961), in which he made clear that, in effect, there is no such thing as civil contempt. Every contempt is criminal or quasi-criminal. The real distinctions are first, whether the contempt will be proceeded with in a summary manner under the rule or in a plenary manner by indictment or accusation, and second, whether the contempt proceedings are in vindication of the public and judicial interest or in the private interest of a litigant who is harmed or prejudiced by the adverse party's contempt. In implementation of Roselle, the Supreme Court adopted R.R. 4:87 in 1965, redesignated as R. 1:10 in the 1969 rules revision. It was R.R. 4:87 which first introduced the tripartite scheme of summary adjudication of contempt, prescribing discrete procedures for (1) contempt in facie curiae, (2) contempt proceedings initiated by order to show cause in all circumstances in which the vindication of the court does not require immediate and peremptory judicial response, and (3) proceedings for private relief brought by a litigant. As originally adopted, R.R. 4:87-1 addressed contempt in facie curiae, 4:87-2 addressed proceedings instituted by order to show cause, and R.R. 4:87-5 addressed relief to litigants. R.R. 4:87-3 and 4:87-4 addressed, respectively, bail and procedures for prosecution and trial when proceedings were initiated by order to show cause. That scheme was preserved in the 1969 revision by designating the original rules as R. 1:10-1 to 1:10- 5, respectively.
The only significant change in those rules since that time was the 1994 amendment which made both structural and substantive modifications. Structurally, R. 1:10-2, -3 and -4 were combined into a single rule with subparts, collecting therein all provisions relating to proceedings initiated by order to show case, resulting in redesignation of relief to litigants as R. 1:10-3. The substantive changes were more significant, substantially circumscribing and redefining, as a matter of essential due process, the court's power to adjudicate contempt in facie curiae without the panoply of procedural safeguards that attend the order to show cause proceeding. As made clear in the 1994 Report of the Civil ...