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In re Laufgas

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 16, 2010

IN THE MATTER OF BERNARD LAUFGAS CHARGED WITH CONTEMPT OF COURT

On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, C-74-96.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 1, 2010

Before Judges Rodríguez, Reisner and Yannotti.

Defendant Bernard Laufgas appeals from a June 19, 2007 order finding him in contempt of an April 1, 2002 revised final judgment containing restraints, and from the six-month jail term imposed. We affirm.

I.

Since the mid-1990's, defendant has carried on a campaign of harassment against employees of the City of Paterson, and has repeatedly been sanctioned for contempt of restraining orders entered by the Passaic Vicinage judiciary. In Amoresano v. Laufgas, 171 N.J. 532, 549 (2002), the Supreme Court upheld two of defendant's convictions for contempt of court and the accompanying two sixty-day jail sentences.

In Amoresano, we had required that the original restraints be somewhat narrowed, a ruling not appealed to the Court. Ibid. Therefore, on April 1, 2002, Judge Passero issued a revised final judgment. The revised judgment provided in relevant part:

1. The temporary restraints issued by the Honorable Amos C. Saunders in this matter by Order dated July 17, 1996 with regard to the City of Paterson are hereby modified and made permanent as specifically set forth in this Order as follows:

(a) Bernard Laufgas is restrained from contacting or communicating in any fashion with, including but not limited to mail, and approaching directly the person of, present or former employees of the City of Paterson and their families, including but not limited to Paterson Police Officers, at their home address, or with the families of City of Paterson employees at their home addresses or places of employment, if the purpose of such contact is to harass, annoy, disrupt, threaten, intimidate or otherwise engage in any conduct which would constitute an offense pursuant to any municipal ordinance, state or federal statute. [Emphasis added.]

Undeterred, defendant continued his conduct with another string of obscene and insulting correspondence, leading the City to file a motion in aid of litigant's rights based on defendant's violation of the April 1, 2002 court order. During a hearing on February 17, 2006, the motion judge clearly explained to defendant what conduct the order prohibited, and explained the harm his past conduct had inflicted on the City employees against whom it was directed. The judge also explained to defendant that if he repeated that conduct, he would be in violation of the April 1, 2002 order.*fn1

After receiving the motion judge's explanation, any reasonable person in defendant's position would have understood that the language he had been using in his letters was offensive and upsetting and that the April 1, 2002 order prohibited him from sending such offensive communications to Paterson employees at their places of work. Instead of imposing a jail term as a sanction, however, the motion judge accepted defendant's representation that he understood the court's explanation and was sorry for his conduct, and the judge accepted defendant's commitment to refrain from such conduct in the future.

Unfortunately, defendant still did not conform his conduct to the requirements of the April 1, 2002 order. Accordingly, he was again charged with contempt of court. Those charges were adjudicated by another judge in a three-day trial. The facts are addressed in that judge's written opinion dated May 31, 2007 and need not be repeated here in detail. In summary, in connection with his requests for public records and other matters, defendant directed a stream of insulting and in some cases obscene invective at the Paterson City Corporation Counsel. His verbal assaults were contained in multiple letters faxed to her office and to the offices of other public officials.*fn2 In her trial testimony, the attorney described the upsetting and disruptive impact of letters which were received and read by her subordinates. She also described her concern over letters sent to other state and local officials and the potential impact defendant's scurrilous accusations might have on her professional reputation.

In a thorough written opinion dated May 31, 2007, the trial judge found beyond a reasonable doubt that defendant violated paragraph 1(a) of the April 1, 2002 revised final judgment and was in contempt of court. Based on the testimony adduced at trial and the letters introduced into evidence, the trial court found that the "evidence of defendant's guilt is overwhelming. Defendant in the letters repeatedly accused [the Corporation Counsel] in vituperative, vile, and extremely offensive language with various acts of criminal and other 'evil' misconduct." The court found "nonsensical" defendant's explanation that the statements were intended to be metaphors and not insults. Further, the court did not accept defendant's explanations for sending the correspondence, because the letters did not address the merits of the underlying disputes with which defendant claimed to be concerned.

In short, the judge found defendant's testimony incredible. He further found that defendant's purpose in sending the letters, as demonstrated by their content and the manner of transmittal, was to harass and intimidate the Corporation Counsel. The court noted that the "existence of administrative and legal proceedings does not give a party to the proceedings license to intimate and harass in violation of a restraining order."

In an oral opinion rendered on June 22, 2007, the judge determined that a six-month jail term was appropriate in light of defendant's long campaign of harassment of public officials, his repeated contempt of court orders, and the fact that shorter jail terms had not deterred him.

II.

On this appeal, defendant raises the following points for our consideration:

POINT I. THE ORDER BELOW FINDING MR. LAUFGAS GUILTY OF CONTEMPT MUST BE REVERSED AS THERE WAS NO VIOLATION OF PARAGRAPH 1(A) OF THE 2002 JUDGMENT SINCE THE DEFENDANT MR. LAUFGAS DID NOT HAVE A PURPOSE "TO HARASS, ANNOY, DISRUPT, THREATEN OR INTIMIDATE;" A FINDING OF GUILT VIOLATES MR. LAUFGAS'S FOURTEENTH AMENDMENT DUE PROCESS AND FAIR TRIAL RIGHTS.

POINT II. THE COURT BELOW ERRED IN ADMITTING LETTERS OUTSIDE THE DATES PLEADED IN THE ACCUSATION IN VIOLATION OF DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT AND STATE CONSTITUTIONAL RIGHTS.

POINT III. THE ORDER BELOW FINDING A VIOLATION MUST BE REVERSED AS THERE WAS NO VIOLATION OF PARAGRAPH 1(A) OF THE 2002 JUDGMENT SINCE THE DEFENDANT DID NOT CONTACT PATERSON CITY EMPLOYEES AT THEIR HOMES AND NEVER CONTACTED EMPLOYEES' FAMILY MEMBERS AT HOME OR THEIR PLACE OF EMPLOYMENT; MR. LAUFGAS'S DUE PROCESS AND FAIR TRIAL RIGHTS WERE VIOLATED.

POINT IV. THE ORDER BELOW FINDING A VIOLATION MUST BE REVERSED AS THERE WAS NO VIOLATION OF PARAGRAPH 1(A) OF THE 2002 JUDGMENT EVEN IF THE DEFENDANT SENT THE LETTERS TO CORPORATION COUNSEL; MR. LAUFGAS'S DUE PROCESS RIGHTS AND FAIR TRIAL RIGHTS WERE VIOLATED.

POINT V. THE ORDER BELOW FINDING A VIOLATION MUST BE REVERSED AS THERE WAS NO VIOLATION SINCE MR. LAUFGAS DID NOT EVER SEND ANY LETTERS TO [THE CORPORATION COUNSEL]; MR. LAUFGAS DUE PROCESS AND FAIR TRIAL RIGHTS WERE VIOLATED.

POINT VI. THE CONTEMPT ORDER VIOLATES MR. LAUFGAS'S FIRST AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION.

POINT VII. THE SENTENCE IMPOSED IS UNDULY PUNITIVE AND CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE FIRST AMENDMENT.

Having reviewed the record, we find that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

We find no error in the trial court's ruling admitting in evidence defendant's past correspondence, although those documents were not the subject of the current contempt proceedings. Those letters were relevant to put the current charges in context. Together with other evidence, they also tended to show that defendant was aware that his current conduct was wrongful and that he acted with intent to harass. See State v. Covell, 157 N.J. 554, 565 (1999).

In the prior proceeding, the motion judge had clearly explained to defendant that sending correspondence containing such offensive language constituted harassment in violation of the court order. Based on that history, and the trial judge's factual findings, we also reject defendant's contention that he did not understand the offensive nature of his conduct and did not intend to harass the Corporation Counsel. The trial court's findings are supported by substantial credible evidence and are, therefore, binding on appeal. See State v. Locurto, 157 N.J. 463, 474 (1999).

Defendant's First Amendment argument is likewise without merit, for the reasons stated by the trial judge in his rulings placed on the record on March 30, 2007 and May 23, 2007. See State v. L.C., 283 N.J. Super. 441, 450 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). We affirm defendant's conviction.

Our appellate review of the sentence imposed is extremely limited. See State v. Bienek, 200 N.J. 601, 612 (2010). We find no abuse of discretion or other error in the six-month jail term. State v. Ghertler, 114 N.J. 383, 387-88 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984). We affirm the sentence for the reasons stated by the trial judge. Our affirmance of defendant's sentence does not preclude him from filing a motion pursuant to Rule 3:21-10(b)(2) for his release from incarceration due to an "illness or infirmity," whether physical or psychological. We imply no view as to whether such a motion, if made, should be granted.

Affirmed.


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