A Summary Contempt Proceeding Goes Awry

Ippolito v. Ippolito, 445 N.J. Super. 1 (App. Div. 2015).  This opinion by Judge Fisher today involved an appeal from a summary contempt proceeding.  Counsel for plaintiff in this matrimonial case wrote a letter to the Family Part judge handling the matter and accused defendant of violating a court order that prevented defendant from “threatening or intimidating any expert in this matter.”

Everything about the matter seemed to be wrong, beginning with the caption, which was not in the form required by Rule 1:10-2(a).  The form of the order to show cause was “also problematic.”  “[T]he judge erred by presiding over the very contempt proceeding he initiated.”  And while Rule 1:10-2(c) states that a contempt proceeding “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,” here, the Family Part judge “seems to have largely prosecuted the matter himself.”

But that was not all.  Having become “complainant, prosecutor, judge and executioner,” the judge required defendant to testify first, reversing the normal burden of proof and depriving defendant of the presumption of innocence in what is in fact a criminal proceeding.  “[T[he summary prosecution of a contempt committed outside the presence of the court is inherently a highly sensitive matter” that warrants “scrupulous attention to the procedural safeguards embodied by the rules.”  The key was whether the judge showed the “appearance of objectivity.”  Applying the required de novo review, Judge Fisher concluded that the Family Part judge had not shown that appearance of objectivity.  Accordingly, the matter was remanded for the Assignment Judge to designate a different judge to preside over the contempt proceeding, the merits of which the Appellate Division did not reach.

Judge Fisher’s opinion offers a useful discussion of the principles that underlie contempt proceedings, which are not frequently conducted in New Jersey courts and are even more rarely the subject of published opinions.  The decision is required reading for attorneys, parties, and (perhaps most importantly) trial-level judges.