NY Judge Defends His Conduct (MORE, CLICK HERE)

NY Judge Defends His Conduct in Rare Public Hearing
By Mark Fass
New York Law Journal
December 7, 2007

One day after Queens Supreme Court Justice Duane A. Hart unsuccessfully petitioned the federal court to stay misconduct proceedings against him, he asked the nine sitting members of the Commission on Judicial Conduct to spare his job.

Charged by the commission with six separate acts of misconduct, including threatening to place an attorney in jail for failing to move forward with a case and asking an attorney with a case pending before him to testify on his behalf at a previous misconduct hearing, Justice Hart yesterday contended that any errors he may have made did not rise to the level of sanctionable misconduct.

In the future, he assured the commission, he would likely handle similar situations differently.

"If I get into a situation like that, I won't hold them in contempt like that," Justice Hart said. "If I had it to do over again, I might not contact [the attorney]."

The hearing marked only the ninth time in the approximately 700 misconduct hearings over the last 30 years that a judge has waived confidentiality and allowed the public into what is usually a confidential hearing, according to the commission's administrator, Robert H. Tembeckjian.

At issue was whether the commission should confirm the findings of referee Felice K. Shea, a former Manhattan Supreme Court justice, who found that the commission's attorneys had established five of their claims against Justice Hart in their entirety, and the sixth in part.

Counsel for each side was allotted 30 minutes, and Justice Hart was given another 10 to argue on his own behalf.

The commission's attorney, Jean Joyce, opened the proceedings by stating that Justice Hart's "pattern of retaliatory conduct," such as his threats of contempt and his purported dismissal of a case because the attorney disobeyed him and moved for mistrial, merited his removal from the bench.

"A judge like this is not going to change," Ms. Joyce said. "He wants to blame everyone else."

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

Justice Hart's counsel, Lawton Squires of Herzfeld & Rubin, hewed to a narrow theme: His client may have made "errors of judgment," but his mistakes were not sanctionable.

"He could have done a lot of things differently," Mr. Squires said. He could have made more complete disclosures about a conflict of interest. He could have had his own counsel contact the attorney he wanted to testify on his behalf. But, Mr. Squires added, "I don't think anything rises to the level of misconduct."

The committee members focused much of Ms. Joyce's 30 minutes on the first claim, that the judge's threat to hold attorney Barry Myrvold in contempt and jail him for failing to pick a jury in a drawn-out medical malpractice case, constituted sanctionable misconduct.

The most vocal member of the panel, attorney Richard D. Emery, asked whether Justice Hart's actions constituted only a mistake, and not misconduct.

"Misconduct and legal error often coincide," replied Ms. Joyce.

A day removed from the federal court's refusal to stay the proceedings on the grounds they were tainted by commission chairman Raoul Felder's "racial bias," race entered the arguments only implicitly, during the heated discussion of Charge VI, which centered on Justice Hart's allegedly belligerent refusal to pass through a metal detector when visiting the Queens Family Court with his mother.

The questions of the four commission members who hold judicial office, implied that they perceived the incident as an abuse of judicial power. The 11-member commission has one vacancy, and Mr. Felder was absent for "personal reasons" that, according to Mr. Felder, had nothing to do with Justice Hart's motion.

"Why is he trying to be better than anyone else?" asked Thomas A. Klonick, town justice for the Town of Perinton, who ran the proceedings in Mr. Felder's absence.

Justice Karen K. Peters of the Appellate Division, Third Department, asked Mr. Squires why his client decided to pick a battle with court security. The judge noted that security often presumed she was "only a wife," but that she opted to ignore it.

Mr. Squires, who like Justice Hart is black, replied, "As I got older and more mature, [I decided] those battles aren't worth fighting. But it doesn't rise to the level of misconduct."

The proceedings were not without moments of levity, usually emanating from Justice Hart himself, who often flashed looks of disbelief towards the press, particularly when Mr. Squires refused to let the judge interrupt the attorney during his 30 minutes on the stand.

Justice Hart also opened his own 10-minute allotment by telling the commission, "I can say, I've had better birthdays than today."

At least one member called out, "Happy birthday."

The commission will finalize its decision at its next meeting, on Jan. 29.