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MATTER CAROLYN R. PECK v. PARKER J. STONE (10/30/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 1969.NY.43355 <http://www.versuslaw.com>; 304 N.Y.S.2d 881; 32 A.D.2d 506 October 30, 1969 IN THE MATTER OF CAROLYN R. PECK, APPELLANT,v.PARKER J. STONE, RESPONDENT Appeal from a judgment of the Supreme Court at Special Term (John H. Farnham, J.), entered March 4, 1969 in Onondaga County, which dismissed the petition in a proceeding under article 78 of the CPLR. Richard A. Ellison for appellant. Carl W. Peterson, Jr., Corporation Counsel (James D. Fitzpatrick of counsel), for respondent. Faith A. Seidenberg for American Civil Liberties Union, amicus curiae. Gabrielli, J. Goldman, P. J., Witmer and Moule, JJ., concur with Gabrielli, J.; Del Vecchio, J., dissents and votes to affirm in opinion. Author: Gabrielli


Appeal from a judgment of the Supreme Court at Special Term (John H. Farnham, J.), entered March 4, 1969 in Onondaga County, which dismissed the petition in a proceeding under article 78 of the CPLR.

Gabrielli, J. Goldman, P. J., Witmer and Moule, JJ., concur with Gabrielli, J.; Del Vecchio, J., dissents and votes to affirm in opinion.

Author: Gabrielli

 This is an appeal from a judgment of the Supreme Court at Special Term (Farnham, J.), entered March 4, 1969 in Onondaga County, which dismissed petitioner's application, in a proceeding under article 78 of the CPLR, to vacate an order made by respondent as Judge of the City Court of Syracuse, Onondaga County.

On October 3, 1968 petitioner, a young female attorney, appeared before respondent as counsel for an indigent defendant. Prior to the commencement of any proceedings on behalf of the client, respondent made an order prohibiting petitioner from appearing as an attorney in his court until petitioner's mode of dress was "suitable, conventional and appropriate". The record discloses that petitioner was wearing a dress, the hemline of which was approximately five inches above the knee. We are called upon to determine whether respondent's order was arbitrarily made and whether he exceeded his authority in prohibiting petitioner from reappearing in his court in similar attire. It is well to observe that the record fails to show that petitioner's appearance in any way created distraction or in any manner disrupted the ordinary proceedings of the court. There is no suggestion that petitioner's dress was so immodest or revealing as to shock one's sense of propriety. Neither is it urged by respondent that the continued appearance by petitioner, so garbed, would create any distraction. In fact, with understandable candor, respondent's counsel admitted that no such claim was made, and, further that her appearance did not create a disruptive condition. Furthermore the record demonstrates that during appellant's colloquy with the court she was at all times respectful, reserved and at no time could her demonstrated attitude in any manner be considered contrary to her ethical responsibilities as an officer of the court. Petitioner asserts, without contradiction, that she appeared similarly dressed in Federal Court and the Appellate Division, Second Department upon her admission to the Bar in December, 1967, as well as in the Supreme Court and other State courts, without objection or comment.

In this posture of the record we are, in effect, being called upon to determine as a matter of law whether a female attorney, so garbed, may be prevented from appearing in court in the pursuit of representing her client's interests. There is nothing in the record to support the court's determination that petitioner's mode of dress was unsuitable, unconventional or inappropriate. She was not afforded an opportunity to be heard on this question and we must conclude that the order was made because of petitioner's appearance in court in a "mini-skirt". We cannot say, as a matter of law, that her mode of dress was unsuitable, unconventional or inappropriate. Upon the facts displayed in the record, we are unable to conclude that respondent's inherent discretionary authority was properly exercised.

In reaching any determination involving such a sensitive matter as evidenced by the facts here presented, the test to be applied is not what the court personally thinks, but whether there is a reasonable basis for the determination made. Whatever may be one's personal judgment as to the propriety of petitioner's dress, we are compelled to conclude that it has become an accepted mode of dress, not only in places of business or recreation, but, to the consternation of some, in places of worship. In assessing a given situation to determine whether a discretionary power has been improvidently exercised, we emphasize the time-honored rule of the requirement that the facts of each case must be examined with particular regard to these powers. In this connection we are presented with a record showing no lack of respect for the court and indeed, as conceded upon the argument, a complete lack of distraction or disruption caused by petitioner's appearance.

A Judge must have and does possess the power to enforce order and control behavior in the courtroom; and, as an officer of the court, an attorney is subject to the control and direction of the Judge (People ex rel. Karlin v. Culkin, 248 N. Y. 465). The Judge is properly given broad discretionary powers in the regulation of his courtroom; and so it should be. Furthermore, membership in the Bar is a privilege burdened with conditions and while certain conditions of conduct may be imposed by a Judge, the imposition of any such rule must bear a reasonable relationship to contemporary conditions and ought to be imposed only after there is a reasonable foundation for the need of any rule.

In becoming an officer of the court, an attorney becomes an instrument or agency to advance the ends of justice. Thus it is required that there be co-operation with the court whenever justice would be adversely affected if co-operation were withheld. While such is the responsibility of an attorney and while it is the duty of a Judge to preserve order and to insure that justice is not obstructed, it nonetheless follows that any order or regulation imposed upon attorneys practising before him, must be based upon factual conditions which leave no doubt that a continuance of the proscribed conduct will result in a disrespect for order and an impairment in the administration of justice. To this end, therefore, any such order or rule must have a reasonable or plausible basis, else this discretionary power is subject to being declared arbitrarily exercised.

Respondent's order gives no indication as to what mode or type of dress would meet the requirement of "suitable, conventional and appropriate". While we do not suggest that every matter or condition which is the subject of the discretion of the Judge must be controlled by specific standards, any such directive or order should be defined in such a fashion that it may be clearly understood, to the end that compliance therewith may not be thwarted because of inexactitude or misunderstanding.

We are mindful of respondent's sincerity in his desire to conduct his court with propriety and we are convinced of the well-intentioned motives in the issuance of his order, but we must conclude that on the basis of the record before us, respondent's discretion in this matter was improvidently exercised and the judgment appealed from should be reversed, and the determination of respondent annulled.

Disposition

Judgment reversed and respondent's determination annulled, without costs.

Del Vecchio, J. (dissenting).

Petitioner, a 27-year-old female attorney, was admitted to practice in December, 1967. In the spring of 1968 she appeared before a City Court Judge and a Justice of the Supreme Court, each of whom admonished her for wearing a miniskirt as inappropriate for courtroom appearance. On July 17, 1968 she appeared before respondent, another City Court Judge, who also questioned her propriety in wearing a miniskirt in his court. She admitted to him that she had not complied with the request of the Justice of the Supreme Court to lower the hemline to above the knee. On October 3 she again appeared before respondent wearing the same type of miniskirt in defiance of this Judge's request and displaying complete disrespect for the other Judges' admonitions. At that time respondent said that her dress "is not suitable for courtroom appearance, which detracts from the dignity of ...


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