                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         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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                                           2
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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                                        3
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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                                         4
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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                                         5
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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                              6
                    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



                                                                            A-5679-17T4
                                         7
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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                                         8
            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.
                                                                         A-5679-17T4
                                       9
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


                                                                             A-5679-17T4
                                           10
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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                                     11
