STATE OF NEW JERSEY v. ISIDRO HERNANDEZ IN THE MATTER OF KEVIN G. ROE, ESQ
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5679-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ISIDRO HERNANDEZ,
Defendant.
IN THE MATTER OF
KEVIN G. ROE, ESQ.,
Appellant.
Argued October 8, 2019 – Decided October 24, 2019
Before Judges Yannotti and Currier.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 17-08-2082.
Kevin G. Roe, appellant, argued the cause pro se.
Respondent has not filed a brief.
PER CURIAM
This appeal arises from the June 22, 2018 summary contempt order
entered against appellant imposing a monetary sanction. Because we find the
judge erred by presiding over the contempt proceeding he initiated, we vacate
the order and remand to the trial court.
In August 2017, a New York-licensed attorney, John L. Russo, entered an
appearance on behalf of a defendant in a criminal case venued in Camden
County. Russo and appellant had worked together on prior occasions and
appellant agreed again to sponsor Russo's pro hac vice application. Over the
next year, Russo appeared in court for the defendant several times, as did another
New Jersey attorney.
Trial was scheduled for June 11, 2018. On June 5, the court advised Russo
his pro hac vice application was deficient. Russo informed the trial judge in a
phone conference that day that appellant would be trying the case. The judge
told Russo appellant needed to enter an appearance.
A second telephone conference was set for Friday, June 8 to discuss the
issues with Russo's application and appellant's appearance. Although appellant
was apprised of the conference, he was in front of a judge in Bergen County at
the appointed time and missed the phone call. Appellant left several voicemail
messages on the judge's phone system after court hours, explaining his other
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matter — a detention hearing — had gone longer than expected and apologizing
for missing the conference. When appellant filed an appearance later that
evening, he received discovery from the State for the first time.
On Monday, the trial date, neither appellant nor the defendant appeared
for trial. It is undisputed that appellant had spoken with the judge's law clerk
early that morning. Appellant contends he was waiting for a return call from
court staff to schedule a phone conference in lieu of trial due to the delay in
discovery production. The judge stated his staff told appellant he had to come
to court.
Following the non-appearance, the trial judge issued an order to show
cause to appellant under Rule 1:10-1 and a bench warrant for the defendant. The
order to show cause, captioned under the criminal docket, required appellant to
appear on June 18, 2018 "to show cause as to why he should not be held in
contempt for willfully contumacious conduct. R. 1:10-1."
The criminal part judge who issued the order to show cause presided over
the summary hearing. He began the proceeding by describing the events that
had occurred over the previous week regarding the case. He acknowledged
appellant had contacted the court several times late Friday afternoon explaining
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his absence, and again on Monday morning, requesting a conference. He then
stated:
It's the [c]ourt's concern that this is willful
contumacious conduct on the part of this attorney, first
by not honoring the conference call that was agreed to
under the circumstances that were certainly important,
given the fact that there was a trial and also given the
fact that there were several inquiries from chambers
with regard to where are the trial documents.
So none of that was supplied. And then, basically
using my words, but it seems to fit, counsel blew off the
trial date the following week.
So, Mr. Roe, I'll hear from you.
Appellant explained he was before a judge in Bergen County on a
detention hearing on June 8 that he assumed would be completed prior to the
scheduled phone conference on the Camden case. He said he had a "panic
attack" when he saw the phone ringing at the appointed time while he was on
his feet in Hackensack. Appellant reiterated he left several messages on the
judge's voicemail system when he finished his detention hearing. He also spoke
with the prosecutor regarding the discovery issues and received discovery for
the first time after 7:00 p.m. that Friday night.
In addressing the events of Monday, June 11, appellant explained he again
called the judge, requesting a conference instead of trial due to the delay in
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discovery production. Appellant said the court staff stated they would "get back
to [him]." The judge disputed appellant's version of the Monday events and said
his staff told appellant he had to come to court. When the judge asked why the
defendant did not appear on Monday for the scheduled trial, appellant st ated
Russo had told the defendant to be "on call" because they were awaiting a
conference.
The judge then ruled, stating:
[O]kay, well, I've heard enough. Okay. I'm going
to make a finding with regard to the order to show
cause.
I find that there has been a willful contumacious
conduct on the part of this attorney, Mr. Roe.
I find that he has entered an appearance [o]n
behalf of Isidro Hernandez, the defendant.
I find there was a clear problem that resulted in a
scheduled telephone conference with the [c]ourt and
counsel on that Friday, June 8th; clearly set down for
4:00. There was no answer when the [c]ourt called.
I'm satisfied that Mr. Roe had to know of the
import of this call, especially given the fact that the
lawyer who apparently was seeking to represent this
defendant was not admitted to practice in the State of
New Jersey.
There was no answer to the call, there was no
ability to even leave a message with Mr. Roe's office.
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The trial was scheduled for the following Monday.
There was no appearance by Mr. Roe or his attorney.
I find that Mr. Roe, having entered an appearance
[o]n behalf of the defendant was . . . under an obligation
to appear consistent with a court notice, and was also
[under] an obligation . . . to have his client appear as
well.
To the contrary, I find that Mr. Roe is responsible
for not only his willful failure to appear,
notwithstanding there was a court scheduled trial, he
also is responsible for essentially telling his defendant
not to appear at that date resulting in a bench warrant
being issued.
I am not at all persuaded and . . . as a matter of
fact I find it to be weak, if not just essentially bordering
on the ridiculous that Mr. Roe argues that he,
potentially or supposedly in concert with the
[p]rosecutor, determined that they did not have
discovery such that the trial . . . was not ready to go and
that then was sufficient reason not to appear in court in
spite of the requirement to do so.
I find it ridiculous because the situation is . . . that
if there was any failures with regard to production of
any document or discovery to counsel [it] is because the
individual who had represented the defendant initially,
or at least appeared in court, was a Mr. Russo, who was
not licensed to practice in the State of New Jersey and
it seems to this [c]ourt that it would be entirely
appropriate that the Prosecutor's Office would not deal
with somebody who wasn't able to practice in the State
of New Jersey.
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The argument that Mr. Roe offers that he thought
there was a pro hac vice motion granted or pending is
without merit.
I find that Mr. Roe is in contempt of this [c]ourt
and I will sanction [him] $1,000.
The judge issued a written decision and order on June 22, 2018, memorializing
his ruling.
On appeal, appellant argues his conduct did not rise to the level of
contempt. He contends his failure to appear for a telephone conference and for
trial was not intentional and was not a deliberate affront to the court's authority.
He further states he attempted to explain his absences at the summary hearing,
but was denied a meaningful opportunity to be heard because it was clear the
judge had already made his decision before hearing from appellant .
"The scope of appellate review of contempt cases is broad." In re
Hinsinger, 180 N.J. Super. 491, 498 (App. Div. 1981). Our "task is to try the
matter de novo on the record below, both as to the facts and the law." Ibid.
(citations omitted). "The appellate court shall render such judgment and order
for enforcement thereof as it deems just under the circumstances." R. 2:10-4.
Because the summary proceeding here was not conducted in accordance
with governing Rules 1:10-1 and -2, thus foreclosing us from exercising a proper
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review on this record, we are constrained to reverse and vacate the order and
remand to the trial court for a hearing consistent with the rules' directives.
Rules 1:10-1 and -2 describe the proper procedures for summary contempt
proceedings. Rule 1:10-1 permits a judge "conducting a judicial proceeding" to
"adjudicate contempt summarily without an order to show cause" under certain
enumerated conditions. All other summary proceedings to punish for contempt
are governed by Rule 1:10-2.
Rule 1:10-2 states in pertinent part:
(a) Institution of Proceedings. Every summary
proceeding to punish for contempt other than
proceedings under R. 1:10-1 shall be on notice and
instituted only by the court upon an order for arrest or
an order to show cause specifying the acts or omissions
alleged to have been contumacious. The proceedings
shall be captioned "In the Matter of ______ Charged
with Contempt of Court."
....
(c) Prosecution and Trial. A proceeding under R.
1:10-2 may be prosecuted on behalf of the court only
by the Attorney General, the County Prosecutor of the
county or, where the court for good cause designates an
attorney, then by the attorney so designated. The matter
shall not be heard by the judge who instituted the
prosecution if the appearance of objectivity requires
trial by another judge. Unless there is a right to a trial
by jury, the court in its discretion may try the matter
without a jury. If there is an adjudication of contempt,
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the provisions of R. 1:10-1 as to stay of execution of
sentence shall apply.
Here, the trial judge properly recognized the alleged contempt had not
occurred during a judicial proceeding before him and, therefore, the issuance of
an order to show cause was required. Although the pleading contained several
deficiencies,1 it was the material procedural errors that occurred during the
hearing that require reversal of the judge's contempt order.
First, the judge prosecuted and presided over the hearing. Rule 1:10-2
mandates that the Attorney General, the County Prosecutor, or a designated
attorney prosecute the contempt charge. Second, "[t]he matter shall not be heard
by the judge who instituted the prosecution if the appearance of objectivity
requires trial by another judge." R. 1:10-2(c).
"The procedural safeguards contained in Rule 1:10-2 are . . . intended to
avoid the inherent arbitrariness of a summary contempt proceeding." Ippolito
v. Ippolito, 443 N.J. Super. 1, 5 (App. Div. 2015); see also In re Buehrer, 50 N.J. 501, 514 (1967) (recognizing "the potential for arbitrariness" when a judge
1
The order to show cause was improperly captioned under the criminal caption
rather than in the form provided in the rule. The pleading also failed to specify
the "acts or omissions" alleged to be contumacious as directed under the rule.
We do not find, under these circumstances, either of these errors to be material
to our conclusion.
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acts as "complainant, prosecutor, judge and executioner" in contempt
proceedings). "The utilization of all those safeguards ensures the 'appearance
of objectivity.'" Ippolito, 443 N.J. Super. at 5.
Appellant contends the judge had decided to hold him in contempt "long
before he ever heard [appellant's] explanations." The record of the proceeding
permits a questioning of the appearance of objectivity. The judge opened the
proceeding by advising of "the significant concern . . . the [c]ourt had with
regard to the conduct of counsel. . . ."
After describing the court's version of the facts, the judge stated:
It's the [c]ourt's concern that this is willful
contumacious conduct on the part of this attorney, first
by not honoring the conference call that was agreed to
under circumstances that were certainly important
given the fact that there was a trial and also given the
fact that there were several inquiries from chambers
with regard to where are the trial documents.
So none of that was supplied. And then, basically
using my words, but it seems to fit, counsel blew off the
trial date the following week.
Therefore, it was only after the judge found appellant had exhibited
contumacious conduct that he permitted appellant to speak and provide his
version of events and an explanation of his actions. The acts of the complaining
judge prosecuting and presiding over the summary hearing himself coupled with
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his opening conclusion that appellant had acted contumaciously calls into
question the objectivity of the proceedings. However frustrating the
circumstances may have been, it was error not to comply with the procedural
safeguards of Rule 1:10-2. Therefore, the order of contempt cannot stand.
We reiterate that our reversal is solely on procedural grounds. We have
not made any judgment as to whether appellant's non-appearances for the phone
conference and trial date amounted to contemptuous behavior under Rule 1:10-
2. That determination will be made by a different judge on remand should an
order to show cause issue.
We reverse and remand to the assignment judge to designate a different
judge to preside over the contempt proceeding. We do not retain jurisdiction.
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