November 14, 2008
IN THE MATTER OF: ANDERSON HARKOV AN ATTORNEY AT LAW.
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2008
Before Judges Payne and Waugh.
Defendant Anderson Harkov, a member of the New Jersey Bar and a deputy public defender, appeals an August 21, 2007, order finding him in contempt of court and sanctioning him in the amount of $100.00, all pursuant to Rule 1:10-1. Having reviewed the matter de novo, we find that there was no contempt of court and vacate the order of contempt, as well as the related monetary sanction.
On August 17, 2007, Harkov was a deputy public defender assigned to the courtroom of a criminal part judge sitting in Hunterdon County. Harkov was representing clients in connection with bail and sentencing matters. He represented a client who had been admitted into the Pretrial Intervention Program (PTI) following indictment on two counts of forgery. She was subsequently terminated from that program. She was then arrested on a bench warrant for failure to appear at a status conference scheduled following her termination from PTI.
Following her subsequent release on bail in the amount of $5,000, with ten percent payable, she was again arrested for failure to appear. She was before the court on August 17, 2007, for determination of her bail.
Harkov represented to the trial court that the reason for his client's termination from PTI was her non-appearance for a counseling appointment. He argued that she did not present a risk of flight and requested that she be released on her own recognizance to "the custody of her parents," who were present in court. After questioning defendant, the trial judge set bail at "$20,000 cash or bond, no ten percent."
Shortly after that client's matter was completed, Harkov appeared before the judge with another client. The following exchange took place:
HARKOV: Sir, Anderson D. Harkov for Mr. Richard. Your honor, with all due respect, I'm wondering whether it will be more appropriate to adjourn the sentencing, since Your Honor seems to have some problem with me today.
COURT: Problem with you?
COURT: Why is that?
HARKOV: I don't know, Judge. I'm not used to first offenders with third degree charges getting 20,000, no 10 percent bails, especially when they've lived their whole life in Hunterdon County.
COURT: That has nothing to do with you. I don't know why you're even suggesting that has anything to do with you.
HARKOV: Okay, Judge, then I'm willing to proceed.
COURT: I take exception to that remark. I'm going to place it on the record. I ruled. We have an appellate division that you're well-aware of. If you disagree with it, that's your route not to make some comment like you just made. And if I ever hear behavior like that again from you, which is totally unexpected, I will impose sanctions.
HARKOV: I just thought the bail was outrageous, Judge, but I'm moving on.
COURT: Okay. Sanctions will be imposed of $100 to be paid in ten days.
The trial judge appended findings of fact and conclusions of law to the order imposing sanctions. After setting forth the facts with respect to the earlier bail application, he continued as follows:
13. After the case was introduced on the record by the Assistant Prosecutor, Mr. Harkov requested an adjournment of the sentencing accusing the Court of having a "problem with him" and taking it out on his client in the setting of Ms. Schuyler's bail.
14. I proceeded to advise Mr. Harkov that the amount of bail set had nothing to do with him, I was at a loss to understand why he would make such an accusation and, if he felt it was excessive, his remedy was to appeal to the Appellate Division.
15. I further advised Mr. Harkov that his on the record allegation was unwarranted, inappropriate and if repeated in the future, would result in a sanction being imposed.
16. Despite these admonitions, Mr. Harkov then proceeded to state on the record in open Court that he found the previously set bail to be "outrageous." I then imposed a $100.00 sanction to be paid within 10 days to the Clerk of the Superior Court.
17. I heard the statements made by Mr. Harkov which I believe were willfully made.
Harkov appeals the imposition of the sanctions.
Rule 2:10-4 provides that "[e]very summary conviction by a court for contempt shall be reviewable on the law and the facts" and that the "appellate court shall render such judgment and order for enforcement thereof as it deems just under the circumstances." Consequently, we "try the matter de novo on the record both as to guilt and punishment." State v. Vasky, 203 N.J. Super. 91, 99 (App. Div. 1985).
In Amoresano v. Laufgas, 171 N.J. 532, 549-50 (2002), the Supreme Court outlined the background and purpose of the law of contempt.
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.
[In re Yengo, 84 N.J. 111, 119-20 (1980) (internal citations omitted).]
The power of our courts to punish for contempt is long established. In re Buehrer, 50 N.J. 501 (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).
Rule 1:10-1, which governs summary contempt in the presence of the court, provides as follows:
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.
Having reviewed the record in its entirety, we conclude that there was an insufficient procedural and factual basis for a finding of summary contempt.
Initially, we observe that there appears to have been no basis in the record for Harkov's assertion that the trial judge declined to release his first client on her own recognizance because he had some sort of personal issue with him as her defense counsel. The defendant was before the trial court to set bail on her second arrest for failure to appear. She had previously been released on $5,000 bail, with ten percent payable, but had failed to appear. She admitted to the trial court that she had been "irresponsible" in not appearing on that prior occasion. In our view, the judge's imposition of a higher bail cannot appropriately be characterized as "outrageous."
Harkov's display of personal pique, after his recommendation was not accepted, was not entirely professional or respectful to the court.
Nevertheless, we do not believe that Harkov's conduct rose to the level of criminal contempt. It was, rather, conduct that should have been "handled informally," perhaps by "a rebuke in chambers" or "reference to other disciplinary bodies." In re Daniels, 118 N.J. 51, 67 (1990). The record reflects Harkov's display of personal pique did not "obstruct" the proceedings; and we are satisfied that there was no real danger that it would have done so. R. 1:10-1(a). It was very brief and the next matter proceeded immediately afterward. However ill-advised Harkov's conduct may have been, it did not have "the capacity to undermine the court's authority" or "to interfere with or obstruct the orderly administration of justice." Daniels, supra, 118 N.J. at 61.
In addition, we find that the trial judge failed to afford Harkov his right under Rule 1:10-1(e) to "respond" and explain his conduct. A full explanation of his conduct from Harkov would have addressed the issue of whether his conduct was truly "willfully contumacious," as required by the rule. Finally, we question whether the conduct, however viewed, was such that "immediate adjudication [was] necessary to permit the proceeding to continue in an orderly and proper manner." R. 1:10-1(d). Cf. R. 1:10-2.
For all of these reasons, we find that Harkov was not guilty of contempt of court on August 17, 2007. Consequently, we vacate the order of contempt entered by the trial judge on August 21, 2007, together with the monetary sanction.
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