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Black NY Judge Can't Derail Misconduct Charges He Calls Tainted by Famous Lawyer's "Racial Bias"

New York Lawyer -News Watch
December 6, 2007
By Mark Fass
New York Law Journal

A black state judge who argued that a pending disciplinary action against him was tainted by the "racial bias" of Raoul L. Felder, chairman of the Commission on Judicial Conduct, lost his bid in federal court yesterday to enjoin the proceedings.

Eastern District Judge Nicholas G. Garaufis ruled that Queens Supreme Court Justice Duane A. Hart failed to satisfy the elements of a preliminary injunction and that state court is the appropriate forum for his claim.

"State courts adjudicate federal rights every day of the week," Judge Garaufis said. "I'm sure Justice Hart is aware of that."

The judge stated he will issue a written decision shortly, in Hart v. Felder, 07-cv-5045.

The commission's proceedings against Justice Hart on six misconduct claims will therefore go forward tomorrow afternoon at the commission's lower Manhattan office.

The commission previously voted to censure Justice Hart for abusing his summary contempt power, a recommendation that was upheld by the state Court of Appeals.

The allegations set forth in the commission's latest complaint include falsely accusing an attorney of extortion, failing to disclose a personal relationship with a defense attorney who appeared in his court and belligerently attempting to help his mother circumvent security at Queens Family Court.

Justice Hart's eleventh-hour attempt to block the disciplinary proceedings came in the form of an order to show cause, filed in the District Court yesterday morning and heard by Judge Garaufis yesterday afternoon.

Justice Hart's attorney, Peter S. Gordon, argued that Mr. Felder's open hostility toward blacks and affirmative action affected the commission's decision to charge Justice Hart.

"The reason we are here," Mr. Gordon told Judge Garaufis, "is the racial bias" in "Schmucks!: Our Favorite Fakes, Frauds, Lowlifes, Liars, the Armed and Dangerous, and Good Guys Gone Bad," the book Mr. Felder cowrote with comedian Jackie Mason.

Among the many controversial sentiments expressed by Mr. Felder in "Schmucks," which was released earlier this year, is that "nothing is more insidious than affirmative action." The book earned Mr. Felder a barrage of rebukes, including a unanimous vote of "no confidence" by his fellow members of the judicial conduct commission (NYLJ, April 16).

Commission attorneys Alan W. Friedberg and Jean Joyce and Assistant Attorney General Jane Goldberg offered several defenses. The matter was moot, they argued, as Mr. Felder had already withdrawn from the proceedings. Mr. Felder is only one member of the commission, and Justice Hart failed to demonstrate the requisite "irreparable harm," they added.

Judge Garaufis agreed, noting that state law "avails Justice Hart of the state court to adjudicate [his] claims of racial bias." To grant the motion, Judge Garaufis added, would "fly in the face of" precedent.

Justice Hart's motion marked the second time a judge cited Mr. Felder's book in contesting a misconduct proceeding, according to the commission's administrator and counsel, Robert H. Tembeckjian. Because that proceeding had a confidential disposition, Mr. Tembeckjian declined to elaborate.

The charges also mark Justice Hart's second appearance before the conduct commission. In 2005, the commission unanimously voted to censure him for holding a plaintiff in contempt for his attorney's insistence that an incident in a parking lot involving the plaintiff and Justice Hart be placed on the record. The Court of Appeals upheld the censure last year, with all seven judges agreeing he was guilty of misconduct but two saying that the penalty was too severe.

In the earlier case, the Court of Appeals majority said it was influenced by Justice Hart's failure to show remorse for his actions.

At yesterday's hearing, Mr. Gordon contended that Mr. Felder's concurring opinion in the 2005 proceedings further evidenced Mr. Felder's bias against Justice Hart.

In 2005, Mr. Felder wrote that Justice Hart "punished the litigant because his attorney sought to make a record and, indeed, he tried to dictate what the attorney should place on the record . . . Compounding this misconduct are respondent's conflicting testimony and his complete lack of contrition, or even recognition of his misconduct."

'Nothing to Do With Me'

In an interview yesterday, Mr. Felder said his views of Justice Hart have "nothing to do with race."

"Judge Hart's problem is that [the original censure] was confirmed by the Court of Appeals," Mr. Felder said. "Judge Hart is Judge Hart's problem. It has nothing to do with me."

Mr. Felder also said he withdrew from the present proceedings for personal reasons, not because of Justice Hart's claims, noting that he mailed notice of his withdrawal two days before Justice Hart filed his motion.

Mr. Felder's term on the commission is scheduled to expire on March 31 of next year.

Complaints pending before the commission are not made public unless confidentiality is waived by the judge, which Justice Hart has not done. However, the judge attached the complaint to his order to show cause, which is a public document.

Among the more serious charges against the judge in the complaint is that he falsely accused attorney Michael Flomenhaft of extortion.

Reached by phone yesterday, Mr. Flomenhaft said Justice Hart refused to adjourn a medical malpractice case, notwithstanding his forewarning of scheduling conflicts, unless Mr. Flomenhaft paid the court $5,000 per day.

"When I refused, he dismissed the case," Mr. Flomenhaft said. "He agreed to vacate the dismissal if I paid the defendant $10,000 in fines."

Mr. Flomenhaft said that he subsequently filed a grievance against Justice Hart, who then accused him of extortion.

The complaint also charges that Justice Hart failed to disclose a "social and professional relationship" with defense attorney Helmut Borchert, and that he failed to disqualify himself from cases involving Mr. Borchert notwithstanding the attorney's legal representation of the judge's sister, as well as his "treat[ing]" the judge "on several occasions" to baseball tickets.

The final charge relates to an incident involving the judge, his mother and a metal detector.

In October 2004, "while accompanying his mother to Queens Family Court for a support proceeding in which she was a party, respondent flashed a shield to court officers providing security services in the courthouse lobby, loudly announced that he was a judge, spoke condescendingly to Court Officer Jose Estrella and Lieutenant Kevin Hanzieh and refused to pass through or permit his mother to pass through a magnetometer."

Justice Hart did not return a call to his chambers seeking comment.

"We're disappointed by the decision and we're going to move on with our case," said his attorney, Mr. Gordon of Queens-based Gordon & Gordon. Judge Garaufis "did give us leave to renew later on should there be irreparable harm."