Pilsbury, Matter of, 286

• Decision Date: 10 January 1989
• Docket Number: No. 286,D,286
• Citation: 866 F.2d 22
• Parties: In the Matter of Anne PILSBURY. ocket 88-6097.
• Court: U.S. Court of Appeals — Second Circuit

Page 22

866 F.2d 22

In the Matter of Anne PILSBURY.

No. 286, Docket 88-6097.

United States Court of Appeals Second Circuit.

Argued Oct. 12, 1988.

Decided Jan. 10, 1989.

Morton Stavis, New York City (Joan Gibbs, Stephanie Moore, Center for Constitutional Rights, New York City), for appellant.

Before KEARSE, PRATT and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Anne Pilsbury appeals from an order of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, summarily holding her in criminal contempt of court pursuant to 18 U.S.C. Sec. 401(1) and (3) (1982) and Fed.R.Crim.P. 42(a), and imposing a one thousand dollar fine. On appeal, Pilsbury contends that her conduct did not constitute contempt, as a matter of law. In the alternative, she argues that the trial court erred in punishing her for contempt summarily. Agreeing with appellant's alternative contention, we reverse and remand.

Background

Pilsbury was cocounsel for a group of Salvadorans seeking asylum in the United States. The Immigration and Naturalization Service ("INS") arrested the Salvadorans in New York and transported them to Louisiana. Appellant obtained a temporary restraining order preventing the INS from conducting deportation proceedings in Louisiana. The Salvadorans were then returned to New York, where free legal counsel was available to them. Consequently, the application for injunctive relief was withdrawn as moot, but a claim for damages remained to be adjudicated.

On November 9, 1987, a status conference was held and the court was informed that a settlement possibility existed. Judge Costantino advised the parties to negotiate further, and set the next status conference for January 26, 1988. The judge did not appear on that date, so the parties discussed a continuance date with one of his clerks. The clerk suggested February 29, 1988. Pilsbury acquiesced, apparently with the understanding that if a conflict existed, she could call the clerk to change the date.

On February 25, 1988, Pilsbury called the judge's chambers and advised the clerk with whom she conversed that she had a conflict on February 29. The clerk suggested a March 1, 1988 date. The remainder of the conversation is reported quite differently by Pilsbury and Judge Costantino. The judge accused Pilsbury of engaging in an "unruly tirade" during which she vetoed the March 1 date unless the judge "guaranteed" his attendance at 10:00 a.m. Bonilla v. Nelson, No. 86 CV-2353, slip. op at 1-2 (E.D.N.Y. Mar. 29, 1988) ("Bonilla I "). ¹ Pilsbury contests this characterization of the conversation, contending that she was "not abusive," but sought a later date because it was unlikely there would be settlement progress to report by March 1, and sought assurance that Judge Costantino would be in attendance in view of the prior experience at the status conference on January 26, 1988.

Ultimately, the status conference was rescheduled for March 3, 1988. That conference consisted entirely of an interrogation concerning Pilsbury's status as counsel in the litigation. Pilsbury stated that she was not admitted to practice in the Southern or Eastern Districts of New York, but in response to an inquiry by Judge Costantino whether she was "admitted to the Appellate Division Second Department," Pilsbury asserted that she was admitted to the "Second District." She also claimed to have been admitted pro hac vice with respect to the underlying immigration litigation. Following that assertion, the March 3 hearing concluded as follows:

THE COURT: All right. We'll find out. Don't you shake your head lady. Go ahead. We'll find out.

MS. PILLSBURY [sic]: Judge, it's a matter of public record.

THE COURT: You better walk out of the courtroom. I suggest you turn around and walk out of the courtroom.

MS. PILLSBURY [sic]: I will be glad to.

THE COURT: I suggest it.

Pilsbury claims that she subsequently ascertained from opposing counsel that the district court had inquired at the March 3 hearing concerning her admission to the Second Department, which inquiry she had mistakenly taken to refer to admission to the Second Circuit, to which she was admitted on June 11, 1984. She further asserts that she thereupon, prior to the next status conference on March 10, 1988, advised Judge Costantino's chambers that she was not admitted in the Second Department, explaining her confusion concerning the March 3 inquiry on that subject.

The March 10 conference was also concerned exclusively with Pilsbury's status as counsel. In response to an opening inquiry concerning her admission to the Second Department, Pilsbury stated: "As I indicated I'm not admitted in New York." Further colloquy ensued concerning Pilsbury's other bar admissions, at the conclusion of which Judge Costantino declined to allow Pilsbury to appear pro hac vice. The transcript then states the following conclusion of the conference:

THE COURT: I'll not accept you as an attorney. If you want more problem [sic] I can give you that also. I can give you all the problems that you are looking for. Take it from me, I don't want to give you any problem.

MS. PILSBURY: Nor I, Judge--

THE COURT: I'm telling, I'll not accept the representation of you appearing for this plaintiff.

MS. PILSBURY: This case is about to be settled.

THE COURT: She can come in and say the case is settled.

MS. PILSBURY: I would think the court would want to know the status of the case.

THE COURT: Do yourself a favor. Go ahead. Let her do herself a favor. I'm going to check Maine and District of Colombia [sic] also. I will check their state bars. You had better be admitted to one of those. You had better be. You are not admitted to the State of New York. You put this court through an awful lot to try to find out where you were admitted.

You go practice your shabby law somewheres [sic] else. Don't you dare practice it in the Eastern District. You no longer will be permitted to practice in any part of this court. You will not be able to practice in this court or the immigration service. This court will see to it.

Step out of my court. I will give you one more chance, step out of my court.

Held in contempt. One thousand dollar fine paid by 4:00 o'clock there [sic] afternoon. I gave you your chance. Don't shake your head at me. Other lawyers know me well.

Emphasis added.

Although the transcript does not reveal it, both Pilsbury and Judge Costantino are in agreement that toward the end of the quoted exchange, following the emphasized portion of Judge Costantino's comments, Pilsbury inquired whether his remarks were on the record. According to Pilsbury, this was done "in a normal tone of voice." Two attorneys who were present in the courtroom, one of whom was Pilsbury's cocounsel in the immigration litigation, submitted affidavits supporting Pilsbury's claim that she was neither disrespectful nor obstructive. As will be seen, Judge Costantino viewed the situation differently.

Various counsel then acted as intermediaries in efforts to conciliate the situation, and Pilsbury submitted an apology to Judge Costantino for "not promptly complying with the Court's order to leave the courtroom this morning" and for inadvertently "not complying with Local Rule 2(c) in that I did not file a certificate of good standing of my admission to the District of Columbia and Maine bars." This effort was partially successful, in that the district court, on March 17, 1988, orally reduced the contempt fine to $250.00 upon the condition that it be paid by March 23, 1988. Pilsbury's counsel then raised the question, in a letter to Judge Costantino dated March 23, 1988, "whether an oral order of contempt fixing a specific date for payment is effective without a written order of the court," ² further advising that "we respectfully await the written opinion and order of the court, when we shall take such steps as may be deemed appropriate."

Judge Costantino then made a formal determination of contempt in Bonilla I, stating in part:

In the last conference before the Court held on March 10, 1988, counsel acknowledged that she was not admitted to the New York State Bar. As occurred previously, counsel once again was derisive, sarcastic and caustic. The disdain counsel showed for the Court was apparant to all present. After ascertaining that counsel was not properly before the Court, she was ordered to leave. Counsel, shaking her head, making facial expressions in a mocking manner, and walking with exaggerated slowness proceeded to leave. When counsel reached the bench in the gallery where she and [cocounsel] were seated, counsel committed a final act of defiance. Counsel from her position in the gallery insisted on knowing if this "was on the record." Her tone and demeanor once again belied [sic] her contumacious attitude towards the Court. The Court faced with this insolent behavior, and the now extensive obstruction of the administration of justice, concluded that an order of contempt was necessitated to vindicate the Court's authority.

Bonilla I at 9-10.

The district court further stated that although this incident was "sufficient to warrant a finding of contempt separately, the Court may also consider counsel's previous acts and remarks." Id. at 10. In view of Pilsbury's failure to pay $250.00 on or before March 23, 1988, the district court ordered that "the fine remains at one thousand dollars with no reduction." Id. at 12.

Pilsbury then moved, pursuant to Fed.R.Crim.P. 42 and 18 U.S.C. Sec. 401 (1982) to vacate the district court's memorandum and order, or alternatively for its reconsideration, and for a stay of the order pending disposition of the motion. The district court denied this motion in Bonilla II. In response to the assertion that, contrary to Fed.R.Crim.P. 42(a), he had punished Pilsbury for conduct not "committed in the actual presence of the court," Judge Costantino specified that although other conduct had been considered "in assessing [Pilsbu...