NJ Appellate Division dismisses contempt finding against ACLU-NJ client who refused to remove religious head-covering in court

August 19, 2014

Appellate Division earlier held that lower court judge erred by failing to conduct indigency hearing for the defendant, who could not afford to appeal the contempt finding against him

The Appellate Division of New Jersey Superior Court on Aug. 12 affirmed the rights of a man who was held in contempt of court (PDF) based on an expression of religious freedom. Appellate Division Judges Paulette Sapp-Peterson and Marie E. Lihotz ruled that two lower court judges had erred, one in holding Matthew Graham in contempt for refusing to remove a religious head-covering and another for failing to dismiss the contempt order even after having found that the municipal court judge did not follow proper procedures in issuing the citation. The Appellate Division dismissed the contempt order, marking a victory for both due process and the First Amendment. The ACLU-NJ first received notice of the order on Friday, Aug. 15.

“This order recognizes the obligation of our courts at every level to take both religious freedom and due process seriously,” said ACLU-NJ Senior Staff Attorney Alexander Shalom, who argued the case on Graham’s behalf. ”No one, no matter his religion, should be forced to violate his religious principles by the very judges that are supposed to protect our rights.”

When Matthew Graham went before Egg Harbor City Municipal Judge William Cappuccio in Oct. 2013, the judge held Graham in contempt for not removing his hat, despite Graham’s explanation that he wore it for religious purposes. When Judge Cappuccio stated that he knew of no religion that required the wearing of a “ski cap,” Graham attempted to explain that he lacked the funds to travel to the store where he could purchase a more traditional religious cap. Judge Cappuccio did not engage in a full hearing on the matter, and instead summarily held Graham in contempt for refusing to remove the cap.

Graham attempted to appeal the contempt finding from the municipal court to the Atlantic County Law Division. Because he could not afford the filing fee or transcript fee for an appeal, Graham sought to be declared indigent, which would relieve him of the financial obligations for those fees. However, Atlantic County Superior Court Presiding Judge Michael Donio refused to hold an indigency hearing or waive the fees, not because he thought Graham could afford them, but because Graham had disobeyed the lower court judge’s command to uncover his head -- the very issue Graham sought to appeal.

In refusing to hold a hearing on Graham’s indigency and ultimately refusing to waive the cost of the transcript, Judge Donio blocked Graham’s access to the courts, a right that the Constitution grants even to those without money. The ACLU-NJ appealed that issue to the Appellate Division on Mr. Graham’s behalf in January of 2014, and the Appellate Division ordered an indigency hearing. Mr. Graham was eventually provided with a transcript of the municipal court hearing free of charge and allowed to appeal his contempt finding.

Judge Donio did not address the constitutional issue in Graham’s case, but he did agree that the municipal judge failed to follow proper procedure in issuing the citation. Instead of dismissing the contempt finding, as is required under the law, Judge Donio sent the matter back to the municipal court to give the municipal judge another opportunity to explain why he had held Mr. Graham in contempt.

Once again the ACLU-NJ appealed the case to the Appellate Division (PDF), resulting in the decision issued on Aug. 12. The ACLU-NJ explained that not only does case law require a dismissal, but that it is also inappropriate for a person to be forced back into court to appear before a judge simply because he was exercising his right to religious freedom.

The Appellate Division held: “We do not believe that wearing of what the municipal judge called a ‘ski cap’ during the proceeding compelled invocation of the extraordinary judicial contempt powers to summarily adjudicate defendant’s conduct.”

The order further stated: “Because the state concedes that the municipal judge failed to adhere to … procedural requirements … the adjudication of contempt was procedurally defective. The interest of justice is not served under this record by a remand.”

“Given the Judiciary’s scarce resources, it is disappointing that we needed to twice argue before the Superior Court and twice file appeals with the Appellate Division in order to vindicate basic principles of due process and religious freedom,” said Shalom. “But, in the end, we’re pleased that the courts properly protected Mr. Graham’s rights.”

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